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Does one J&A=one Mod?

By Elenaor Summers on Thursday, June 22, 2000 - 10:53 am:

Thanks very much for the input - Vern you are correct, this was not a case of exercising options, nor, as John suggests would it have been appropriate to use the "Changes" clause. These are indeed new quantities of a number of different configurations which were not initially anticipated, based on changes in the Navy's requirements. I'm not really sure an option would have been completely appropriate since the Tech Code didn't have a real tangible basis for their estimates, although hindsight being 20/20 we perhaps should have gone that way. At the time we were under a real time crunch (the typical thing - no one defines the requirement until they are threatened with losing their funds - plus I was getting ready to go out on maternity leave), so I plead guilty to possibly not having crystal clarity in all aspects of my thinking.
Indeed we did end up converting our J&A to a Class J&A - my misconception was that the J&A we initially wrote would cover more than one modification of the basic contract and that a Class J&A wasn't necessary (every other organization I've worked in for the last 15 years worked that way - guess it just goes to show that stopping long enough to read the regs pays off…)
PS an IDIQ would have been my strong preference for this, but I inherited it after award and I work in an organization that prefers "C" type contracts with TDLs. But that's a topic for another discussion...

By John Ford on Thursday, June 22, 2000 - 10:06 am:

I agree with Vern. Additionally, this is not a change under the Changes clause. We often use the term "within scope" too loosely. The Changes clause permits changes within specified parameters or areas. It does not confer a general authority to make any change deemed desirable. As such, it is generally impermissible to acquire additional quantities of supplies using the Changes clause. Finally, based on the fact you had sufficient funds to buy some of the widgets you needed, but not enough to buy all you needed, was it possible to have awarded an IDIQ contract?

By Vern Edwards on Thursday, June 22, 2000 - 12:27 am:


I disagree with Eric to the extent that I don't see anything in your message that indicates that you are exercising an option in accordance with FAR Subpart 17.2.

If I read you correctly, you want to negotiate a modification to the contract in order to purchase additional quantitites. It appears that you plan to mod the contract in this way each time you want to buy additional quantities. If my understanding is correct, then you will need to prepare a J&A for each such mod. That seems very clear based on FAR 6.303-1(a) and (c). Each mod is a "contract." See FAR 2.101.

However, if my understanding is correct, then it seems to me that you are proceeding inefficiently. It looks like you are dealing with a true sole source. Why not write a class J&A? Or, instead of negotiating a new mod each time you want to buy additional quantities, why not negotiate one mod that includes several options to buy more quantities and use one J&A to cover them all. I can't understand why you would cut separate mods for the same contract each time you want to buy more widgets, but perhaps I don't understand what you're doing.

By Eric Ottinger on Wednesday, June 21, 2000 - 05:36 pm:


FAR Part 5 might help. I believe "additional" means "out of scope" in this context. Your modifications would appear to be options within the scope of the contract and the J&A.

FAR 5.001 -- Definition.
"Contracting action," as used in this part, means an action resulting in a contract, as defined in Subpart 2.1, including contract modifications for additional supplies or services, but not including contract modifications that are within the scope and under the terms of the contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

(I am not a lawyer. I never advise anyone to do anything other than what there boss wants them to do. I am not feeling particularly bright at the moment. Etc.)

Anyway, I think you have got it right. Perhaps, you should clarify what you mean by "mod". I think you mean option.


By Eleanor Summers on Wednesday, June 21, 2000 - 05:07 pm:

We are currently involved in a discussion at my command regarding J&As (citing exception 1) for increased quantities under an existing contract. In this case, the original contract was solicited competitively, but only one offer was received. The requirement has arisen for additional quantities of the same type of (quite complex) equipment with some minor variations. The requirement was synopsized, no responses were received; the program office had a good feel for the quantities required, but due to funding constraints would not be able to buy all the quantities at the same time - they would be purchased as funds became available. The J&A was written to support this approach and was approved. Subsequently, a mod was issued buying the first increment of "widgets". There is now a contingent arguing that we must write either a class J&A or a new J&A for each mod that we intend to issue. The legal argument for this is as follows: "FAR 6.303-1(c) indicates that the definition of a class J&A refers to the execution of more than one contract action. Likewise, NAPS 5206.304(c) uses the plural term "actions" in the context of class J&As; i.e., more than one contract action. The definition of the word "contract" includes bilateral contract modifications. FAR 2.101. Given the above citations, it appears as though the FAR/NAPS instituted the 'one J&A=one mod' rule."
I'm fairly new to this office, and don't want to make waves, but the idea of doing extra work unnecessarily is terribly frustrating... I've worked in several contracting offices and none of them had this philosophy - but hey, maybe I've just been playing fast and loose with the regs all this time...
However, I can't help suspecting that this really wasn't the intent of the regs; the intent of the J&A (as has been noted several times in this forum) is to approve the source and the action - the fact that the action takes place over the course of more than one mod, due exclusively to funding issues, should not, in my mind, force one to do a class (or multiple) J&A(s).
There are a number of very bright folks who routinely contribute to this forum and I hope some of you will provide an opinion on this. Thanks!