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    What is the process for increasing ceiling besides doing a modification?


    Answer

    There are two potential issues with increasing the maximum order quantity of the multiple award IDIQ contracts: (1) the rights of the parties and (2) the scope of the competition for the original acquisition. (1) According to FAR clause 52.216-19 -- Order Limitations,  the government does not have the right to order a quantity or amount in excess of the maximum and the contractor has no obligation to accept or perform an order in excess of the maximum.  In other words, the IDIQ holders would first need to agree to any increase in the maximum order quantities for their respective contracts. 
     
    (2) With regard to the scope of the competition, the order of any quantity or dollar amount in excess of the maximum could be grounds for protest if the order exceeds the scope of the competition for the original acquisition.  A question that would need to be answered is whether or not the offerors could have reasonably anticipated, at the time of award, that the total amount of orders against the multiple award IDIQ contracts would exceed the maximum quantity established for the contracts.  Based on previous GAO rulings, an increase in the maximum quantity of an IDIQ contract (other than through the exercise of an option) has generally been construed as an increase to its scope and constituted a new procurement, requiring either full and open competition or a J&A. See: Erickson Helicopters, Inc., B-415176.3; B-415176.5 (Dec 11, 2017) and Liebert Corp., B-232234.5, 70 Comp. Gen. 448 (Apr. 29, 1991). 
     
    Bottom line: your options appear to be limited here.  Other than conducting another competition to award new IDIQ contracts,  the only other alternative is writing a J&A and getting it approved in accordance with FAR Part 6.  Also, any J&A would need to withstand public scrutiny since it needs to be publicized.  Your acquisition team should first discuss whether a basis for a sole source justification exist and/or whether it's time to begin planning the follow-on acquisition.  Recommend, also, consulting with your JAG and Contracting Officer to ensure all of the legal/contractual implications have been considered and your agency's competition advocate to determine the practicality of obtaining approval (e.g. perhaps, the approval authority would consider a limited J&A to allow enough time to award the new contracts). 


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