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  • Question

    In a situation where you have multiple existing contracts for the same services, and all awarded to the same sole source vendor, is it possible to create one large contract that combines these contracts - either by modifying an existing one or creating a new contract without going through the same J&A procedures that were already conducted?


    Answer

    1. The FAR and DFARS references quoted below in pertinent part are applicable to this response.

    FAR Subpart 1.7 -- Determinations and Findings
    FAR 1.701 -- Definition
    “Determination and Findings” means a special form of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions. The “determination” is a conclusion or decision supported by the “findings.” The findings are statements of fact or rationale essential to support the determination and must cover each requirement of the statute or regulation.

    FAR 1.704 -- Content
    Each D&F shall set forth enough facts and circumstances to clearly and convincingly justify the specific determination made. As a minimum, each D&F shall include, in the prescribed agency format, the following information:
      [Paragraphs (a) through (f) specify the minimum content requirements for D&Fs].
      (g) The signature of the official authorized to sign the D&F and the date signed.

    FAR 6.301 -- Policy
    (b) Each contract awarded without providing for full and open competition shall contain a reference to the specific authority under which it was so awarded. Contracting officers shall use the U.S. Code citation applicable to their agency (see 6.302 [Circumstances Permitting Other Than Full and Open Competition]).

    FAR 32.001 – Definitions
    “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.

    DFARS Subpart 204.70 – Uniform Procurement Instrument Identification [PII] Numbers
    DFARS 204.7001 – Policy, paragraph (c)
    (1) If continued performance under a contract number is not possible or is not in the Government’s best interest solely for administrative reasons …, the contracting officer may assign an additional PII number by issuing a separate continued contract to permit continued contract performance.

    (2) A continued contract—
      (i) Does not constitute a new procurement;
      (ii) Incorporates all prices, terms, and conditions of the predecessor contract effective at the time of issuance of the continued contract;
      (iii) Operates as a separate contract independent of the predecessor contract once issued; and
      (iv) Shall not evade competition, expand the scope of work, or extend the period of performance beyond that of the predecessor contract.

    (3) When issuing a continued contract, the contracting officer shall
      (ii) Follow the procedures at PGI 204.7001(c).

    DFARS PGI 204.7001 – Policy
    (c)(i) Continued contracts are issued solely for administrative reasons and do not constitute a new procurement. When issuing a continued contract, the contracting officer shall—
      __(A) Obtain approval at a level above the contracting officer before issuance of the continued contract;
      __[Additional requirements are specified in subparagraphs (B) through (I).]
      (ii) [This subparagraph provides sample language for the administrative modifications to the predecessor contracts.]

    2. Based on the information presented in this inquiry, we believe that the contracting activity could possibly combine all of the existing contracts into a single “continued contract” with this supplier under the authority of DFARS 204.7001(c), provided that this action is being taken solely for administrative reasons pursuant to DFARS 204.7001(c)(1). Furthermore, this authority may be used only if this single continued contract will comply with all of the requirements specified in DFARS 204.7001(c)(2) as described above with regard to each of the predecessor contracts.  Additionally, pursuant to DFARS PGI 204.7001(c)(i)(A) (as invoked by DFARS 204.7001(c)(3)(ii)), approval at a level above the Contracting Officer must be obtained before issuing the single continued contract. 

    3. Provided that all of these conditions can be satisfied, then we believe that a single continued contract may be issued to supersede all of the predecessor contracts without the need to process a J&A for the continued contract. However, given that authorization at a level above Contracting Officer must be obtained, we also believe that a formal D&F should be prepared in accordance with the requirements of FAR Subpart 1.7 and signed by such approving official. This D&F would describe the specific facts, circumstances and rationale to clearly and convincingly justify that the use of a continued contract is compliant with all of the requirements set forth in DFARS 204.7001(c).

    4. However, if all of the conditions described above cannot be met to permit the use of a single continued contract under the authority of DFARS 204.7001(c), then we believe that the combination of the requirements contained in the existing contracts into one large contract would constitute a new contract action as defined by FAR 32.001. In that case, we would also conclude that this new contract action must be supported by a J&A processed in accordance with the content and approval requirements specified in FAR 6.302 pursuant to Government policy as stated in FAR 6.301(b).


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