FAR 52.217-8: Is It Really An Option? Open Access
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GAO's 2009 decisions in Major Contracting Services, Inc. and the reconsideration decision threw the contracting community, specifically the DoD, into a frenzy with regards to the use and application of FAR 52.217-8, Extension of Services. The decision called for agencies to specifically evaluate FAR 52.217-8 extensions as a part of the initial competition. As the Army's request to reconsider GAO's initial decision and its request to open a FAR case suggest, a separate evaluation of the clause was not something agencies were in the practice of doing. This was mainly because the FAR provided no guidance as to how to conduct evaluations of an extension that may not be used and for a period of performance that could not be determined during initial competition. The decisions of the Court of Appeals for the Federal Circuit, the Court of Federal Claims, and the Armed Services Board of Contract Appeals also contained no guidance with respect to the evaluation of FAR 52.217-8 clauses. In fact, they all previously upheld the agency's use of the rates from a preceding option period as valid exercises of FAR 52.217-8. The decisions are silent with regards to the particular evaluation of the clause and seem to be in conflict with GAO's opinion. This thesis explores the history of the clause and the unsuccessful efforts to revise both the FAR and DFARS, which only showcase the confusion with regards to the proper application and use of FAR 52.217-8. Instead of providing contracting officers a simpler solution for extending service contracts, the revision efforts were stifled by the contracting community's inability to agree on the proper use of the clause. Specifically, the standstill concerned proposed limitations on the use of the clause. Another FAR revision is needed if the drafters' original intent of FAR 52.217-8 is to survive. This revision must remove the current ambiguity that exists within the clause, and its associated clauses, so that contracting officers may effectively use the extension as originally intended. This revision must be narrowly focused and must avoid placing any additional limitations on the clause or on the contracting officers' ability to use the clause. Although many people in the contacting community believe placing additional limitations on the clause's use is necessary to prevent overuse and to encourage more efficient procurement processes, doing so will only lead to more inefficiencies in the administration of service contracts and may create an atmosphere where contracting officers are hesitant to exercise discretion. The goal should be to assist contracting officers in complying with the evaluation requirements that GAO held was necessary. Specifically, the goal in revising the clause must focus on clarifying "within the limits and at the rates specified in the contract" so that a proper evaluation may be conducted.