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  • Question

    Can the Contracting Officer do a modification to add the new 11 color printers to the contract after exercising the 3rd option year and have the same services apply to those new printers ?


    Answer

    It is not clear how many contracts you are speaking of.  If there is just the one; is it a Service Contract or a Supply contract?  If it is a service contract then it is not clear why FAR 52.217-7 was incorporated in the contract since it is not a clause that is included in service contracts (see FAR 17.208(e)).  If it is properly included then you have to determine whether or not the schedule (Section B if using the UCF) provided for the items you seek to purchase as option items and whether the option was properly exercised (timeliness notification as required by the clause).  If the 11 items were not included and it was not reasonably anticipated that they would be included in this contract (consider the perspective of a potential competitor) then the purchase would be out of scope.  If the purchase is out of scope then there should’ve been a Justification and Approval (if applicable) or a proper competition for the procurement of the items under a separate contract.

    The fact that something is in an RFQ but then does not make its way to a contract is insufficient.  Please see Horn & Associates, No. 08-415C (United States Court of Federal Claims) as an example of this very situation.

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