Is a J&A required in order to award a modification to increase the IDIQ NTE? Why or why not? Thank you.
Per FAR 6.001(c), FAR part 6 does not apply to “Contract modifications that are within the scope of the contract.” In addition, FAR 16.505(a)(2) states, “Orders shall be within the scope, issued within the period of performance, and be within the maximum value of the contract.” Clearly, since you are contemplating modifying the basic IDIQ contract to increase the NTE dollar amount, a Contracting Officer scope determination has to be made. Some items to consider are: at the time of the original competition, would competitors reasonably anticipated the changes to the contract (e.g., in your case the addition of multiple groups and increase in contract ceiling)? Even though the SOW was written broadly to support space exploration programs, documents from the original industry day and the acquisition plan may provide additional insight. Did the other customer groups support the industry day and brief their requirements? In the industry base, is it anticipated that these contracts will expand and the dollar amount increase over time?
If it is determined that this dollar increase modification is out of scope, then a J&A will be required in order to change the basic IDIQ. If it is determined to be in scope, the Contracting Officer determination should clearly document the reasons it is in scope in case other contractors raise questions.