1. The FAR references quoted below in pertinent part are applicable to this response.
Open full Question Details
FAR Part 5 -- Publicizing Contract Actions
FAR 5.001 -- Definition
“Contract action,” as used in this part, means an action resulting in a contract, as defined in Subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.
FAR Part 6 -- Competition Requirements
FAR 6.001 – Applicability
This part applies to all acquisitions except --
(a) Contracts awarded using the simplified acquisition procedures of Part 13;
(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
FAR 6.302-1 -- Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements
(c) Application for brand name descriptions.
(1) An acquisition or portion of an acquisition that uses a brand-name description or other purchase description to specify a particular brand-name, product, or feature of a product, peculiar to one manufacturer—
(i) Does not provide for full and open competition, regardless of the number of sources solicited; and
(ii) Shall be justified and approved in accordance with FAR 6.303 and 6.304.
FAR 52.243-1 -- Changes -- Fixed-Price
(a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:
(1) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government in accordance with the drawings, designs, or specifications.
(b) If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of the work under this contract, whether or not changed by the order, the Contracting Officer shall make an equitable adjustment in the contract price, the delivery schedule, or both, and shall modify the contract.
FAR 43.102 -- Policy
(b) Contract modifications, including changes that could be issued unilaterally, shall be priced before their execution if this can be done without adversely affecting the interest of the Government. If a significant cost increase could result from a contract modification and time does not permit negotiation of a price, at least a ceiling price shall be negotiated unless impractical.
2. Based on the acquisition situation as described in this inquiry, we believe that there are two alternative ways to deal with this situation that will be much less cumbersome to implement. First, we assume that this is an IDIQ contract with the minimum order quantity specified as a total dollar amount. Because the Government's only obligation would be to order this minimum dollar amount and not all of the 30 individual items, and if there is no danger of not ordering the minimum dollar amount otherwise, then the Contracting Officer could break out the one item costing $11,520 using FAR Part 13 simplified acquisition procedures. In this approach, the Contracting Officer could solicit the "Brand Name" only from all three of the original suppliers and award to the low quote. Because FAR Part 6 does not apply to acquisitions using the SAP pursuant to FAR 6.001(a), the J&A requirements regarding soliciting "Brand name only" in FAR 6.302-1(c)(1) would not apply.
3. Second, as stated in FAR 6.001(c), FAR Part 6 does not apply to contract modifications that are within the scope and under the terms of an existing contract. In our opinion, the Doctor's current need for a "Brand name" drug versus the generic version represents a change in Government requirements. We believe that such a change would be within the scope of the existing contract because the Government is still acquiring the same drug, but only changing the specification from generic to Brand name. Therefore, we believe that the Contracting Officer could also execute a bi-lateral modification pursuant to FAR 43.102(b) under the authority of the "Changes" clause to change the specification of this drug from generic to Brand name and increase the contract price by $11,520 as a result of this change.