Can we bilaterally modify a delivery order (that was issued within the contract POP) to add quantities to the CLINs on the delivery order, after the contract POP has expired?
1. The FAR references quoted below in pertinent part are applicable to this response.
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FAR 2.101 -- Definitions
“Full and open competition,” when used with respect to a contract action, means that all responsible sources are permitted to compete.
FAR 5.001 and FAR 32.001; [definition relevant to this inquiry]
“Contract action” means an action resulting in a contract, as defined in Subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.
FAR Part 6 -- Competition Requirements
FAR 6.001 -- Applicability
This part applies to all acquisitions except --
(c) Contract modifications, including the exercise of priced options that were evaluated as part of the initial competition (see 17.207(f)), that are within the scope and under the terms of an existing contract;
FAR Subpart 6.1 -- Full and Open Competition
FAR 6.101 -- Policy
(a) 10 U.S.C. 2304 and 41 U.S.C. 253 require, with certain limited exceptions (see Subparts 6.2 and 6.3), that contracting officers shall promote and provide for full and open competition in soliciting offers and awarding Government contracts.
FAR Subpart 6.2 -- Full and Open Competition After Exclusion of Sources
FAR 6.201 -- Policy
Acquisitions made under this subpart require use of the competitive procedures prescribed in 6.102.
FAR Subpart 6.3 -- Other Than Full and Open Competition
FAR 6.302 -- Circumstances Permitting Other Than Full and Open Competition
The following statutory authorities (including applications and limitations) permit contracting without providing for full and open competition. Requirements for justifications to support the use of these authorities are in 6.303.
FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements
FAR 6.302-2 -- Unusual and Compelling Urgency
FAR 6.303 -- Justifications
FAR 6.303-1 -- Requirements
(a) A contracting officer shall not commence negotiations for a sole source contract, commence negotiations for a contract resulting from an unsolicited proposal, or award any other contract without providing for full and open competition unless the contracting officer --
(1) Justifies, if required in 6.302, the use of such actions in writing;
(2) Certifies the accuracy and completeness of the justification; and
(3) Obtains the approval required by 6.304.
2. Pursuant to contract clauses FAR 52.216-18(a) and FAR 52.216-22(a), no additional delivery orders may be issued after the contract period of performance because any such order would fall outside of the contract's effective ordering period as set forth under the terms of the contract. A bilateral modification of an existing delivery order to add the additional quantities would, in fact, be tantamount to issuing a new delivery order outside of the contract’s effective ordering period, which would not be permitted under the terms of the contract. As such, the proposed issuance of such a bilateral modification would constitute a new “contract action” as described above. Therefore, assuming that the value of the additional quantities exceeds the simplified acquisition threshold, then in accordance with FAR 6.001(c), this new contract action is subject to the competition requirements of FAR Part 6.
3. Based on the above, any award of a sole source, bilateral modification of the delivery order to the incumbent contractor that increases quantities does not provide for the use of “full and open competition” as required by FAR 6.101(a). Therefore, pursuant to FAR 6.302, such an acquisition approach could be used only if one of the specified statutory authorities (including applications and limitations) that permit contracting without providing for full and open competition can be justified in accordance with the requirements set forth in FAR 6.303-1(a) (for example, either of the authorities described under FAR 6.302-1 or FAR 6.302-2 as listed above). If a sole source authorization cannot be justified, then we believe that the Contracting Officer must use the acquisition approach specified either in FAR Subpart 6.1 -- Full and Open Competition or in FAR Subpart 6.2 -- Full and Open Competition After Exclusion of Sources, as may be appropriate, in order to solicit and award this new requirement for the additional quantities.