Although the maximum ordering limitation has been reached, can the Contracting Officer issue a not to exceed (NTE) amount under an active task order due to unforeseen conditions?
Will the agency be in violation of the Competition In Contracting Act (CICA) if a NTE amount is issued?
Is a justification required?
According to FAR 16.505(a)(10)(i):
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"No protest under subpart 33.1 is authorized in connection with the issuance or proposed issuance of an order under a task-order contract or delivery-order contract, except for—
(A) A protest on the grounds that the order increases the scope, period, or maximum value of the contract...."
In your case, it appears that you have, in fact, increased the maximum value of the contract. By your admission, the MOL has been exceeded by millions of dollars, thus putting you in a contractual position that will be difficult to defend. The laws and regulations have been structured to allow maximum flexibility for the award of task orders under ID/IQ contracts and also to head off potential protests regarding these orders. It does remain that protests will be entertained regarding conditions of the contract itself. My recommendation is to obtain a J&A for all work above the MOL or obtain competion. In addition, I would obtain a sound legal opinion regarding the circumstances of your contract.