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  • Question

    Can we price the options back in to the contract and make it a multiple year contract based on the rationale that original solicitation received only one bid only 4 months earlier?


    Answer

    Yes, you can modify a contract to add options as long as you have the appropriate J&A.  Adding additional work, such as options, is almost always considered out-of-scope to the original contract.  A supplemental agreement to add out-of-scope work to a contract would then be a clear violation of CICA without a J&A.  Since only one offer was received in the initial solicitation, the requirements of DFARS 215.371 would have been followed.  If you do pursue a J&A, the additional steps taken to comply with these new competition requirements will strengthen your request.
     
    I will also add that the circumstances in your specific scenario may allow you to consider this modification as in-scope based on case law.  Please read the background information below and seek legal advice. 
     
    Background:
     
    A "scope" determination is generally based on the terms of the original contract.  But an excerpt, included below, from a US Court of Appeals decision combines the scope determination with the "original competitive procurement".  Your original solicitation included options that were later removed before contract award.  So, you may be able to argue that the "original competitive procurement" (although not the contract) did include options.  Again, please consult your legal office before taking any action. 
     
    The United States Court of Appeals for the Federal Circuit, accordingly, has recognized that modifications of an existing contract are permissible to procure products or services, as long as the modification is “within the scope of the original competitive procurement.” [AT&T Communications, Inc. v. Wiltel, Inc.]

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