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  • Question

    Does this action require a J&A and an updated PWS?


    Answer

    Per FAR 6.301, "Contracting without providing for full and open competition or full and open competition after exclusion of sources is a violation of statute, unless permitted by one of the exceptions in 6.302." The requirement for a  J&A occurs whenever the Government relies upon use of a FAR 6.302 exception to avoid full and open competition or full and open competition after exclusion of sources when such competition is otherwise required. The question, then, is whether the FAR Part 6 competition requirements apply in a particular case. When considering modifications, per FAR 6.001, the FAR Part 6 competition requirements apply 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."  Therefore, if a modification is within scope, there is no need for a J&A. If it is out of scope, an approved J&A is required to avoid a new competition.
     
    Scope determinations are typically complicated and based predominantly on case law, so legal counsel should generally be sought in making such determinations. Recognize that scope determinations must withstand potential scrutiny by GAO, a court, etc. The following excerpt from GAO's 2002 bid protest case B-289331 summarizes the Comptroller General's criteria for determining whether a change is within the scope of the contract:
     
    "In determining whether a modification triggers the competition requirements in the Competition in Contracting Act of 1984, 10 U.S.C. § 2304(a)(1)(A) (Supp. IV 1998), we look to whether there is a material difference between the modified contract and the contract that was originally awarded. Neil R. Gross & Co., Inc., supra, at 2-3; see AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993). Evidence of a material difference between the modification and the original contract is found by examining any changes in the type of work, performance period, and costs between the contract as awarded and as modified. Access Research Corp., B-281807, Apr. 5, 1999, 99-1 CPD ¶ 64 at 3-4; MCI Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD ¶ 90 at 7-8. The question for our review is whether the original nature or purpose of the contract is so substantially changed by the modification that the original and modified contract would be essentially different, and the field of competition materially changed. Everpure, Inc., B-226395.4, Oct. 10, 1990, 90-2 CPD ¶ 275 at 4."
     
    Caution is especially warranted if your cost increase is also associated with a quantity increase because major quantity changes (unless a change in quantities of ancillary items) have been held to be outside the scope of the original competition.  See, for example, Liebert Corp., 70 Comp. Gen. 448 (B-232234.5), in which the Comptroller General found that "(a)n order in excess of the maximum quantity stated in the contract would be outside the scope of the contract. Such an order would result in a contract materially different from that for which the original competition was held and, absent a valid sole-source determination, would be subject to CICA requirements for competition."
     
    The question as to whether an updated PWS is required is not one that can be answered without reviewing the current PWS, which should be done by the cognizant contracting officer and appropriate acquisition team members.
     
     

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