animalspirits

Joel Hoffman, your summarizing post dated Thursday 7:09pm is extremely interesting to me, and very clear to understand. I see logical merit to this way of considering the situation; thank you! If anyone is able to point me to any cases that discuss this concept further (how XY should be considered a separate unit from Z, not a unitary XYZ), please post them; I would like to read more on this topic. No Joel, I don’t have access to a recent edition of Nash and Cibinic’s Administration of Government Contracts. I will seek it out. To address another commenter’s question about why I’m being so vague with the facts . . . I’m tasked with reviewing many modifications each year, including commercial and noncommercial, including some where prior modifications were supported by JOFOCs but now they are looking to add more work that the CO claims is within scope. I’m just trying to apply the right framework to my analysis, and I very much appreciate all the time that posters have given to this topic. My decision to include few facts in my original question is based on my need to find the right framework for reviewing many modifications with many different fact patterns. One post a while back asked me, if I’m not using the Changes clause as the basis of authority, what am I using? While many/most of the modifications that I’m reviewing do involve changes that fall within the list of enumerated permissible change types in the Changes clause, it’s my understanding (supported by Vern Edwards’ comment dated June 22, 2011 here) that in-scope changes are NOT LIMITED TO only those enumerated change types in the Changes clause. The Changes clause provides certain UNILATERAL rights to the Government. It’s my understanding that, for a bilateral modification to a contract that had not previously been modified with a JOFOC, my scope analysis is based on a totality of the circumstances, considering whether the changes were (or should have been) fairly and reasonably contemplated by potential offerors at the time that the contract was solicited and awarded, whether it is likely that the field of competition (i.e., the number and identities of offerors) would have changed if the changes had been included in the original solicitation, and whether it is likely that the contract would have been awarded to a different awardee if the changes had been included in the original solicitation. Therefore, there may be instances where a change may be considered in-scope even if it falls outside of the enumerated list of permissible changes in a Changes clause included in the contract, so long as it meets the totality of the circumstances test identified in the previous sentence. For what it’s worth, if no one has anything else to add, I feel as if my question was asked and answered. Thank you all!

I should have stated in the scenario, the modification to add Q would be bilateral. So I'm not worried about the contractor objecting, I'm worried about a third party thinking that the modification runs afoul of CICA and that Q should have been competed (or supported by a JOFOC). There were questions above about whether it was commercial and whether the contract included a Changes clause. Let's say that the Contracting Officer's argument for Q being in scope is the following: either the PWS explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope) or the totality of the circumstances is such that any reasonably informed party being familiar with this industry and the work set forth in the PWS could have reasonably foreseen and anticipated that changes of this type would be required over the course of the contract and that, had the contract been originally solicited as XYZQ instead of XYZ, it is unlikely that the field of competition would have changed or the apparent awardee would have changed (as compared to soliciting XYZ). If that is the case, does commerciality or the presence of a Changes clause matter to the analysis? I was not aware of CICA analysis changing depending on commerciality, and the Changes clause is not a required authority for the modification's issuance nor a basis for the Contracting Officer's underlying scope argument. I appreciate all the responses.

Scenario: Contract is awarded for XY services. Government wanted to add Z, which was out of scope. Government prepared and issued adequate JOFOC. Current contract is now for XYZ services. Question: Now Government is now attempting to add Q services to the contract. For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract. When deciding whether a JOFOC is required to add Q to the contract, may the Government's analysis be based on the current iteration of the contract (i.e. XYZ contract, meaning that Q is in scope and a JOFOC isn't required)? Or must the Government's analysis be based on the original contract at award (i.e., XY contract, meaning that Q is out of scope and a JOFOC is required)? Regulations or cases supporting your position would be helpful. THANK YOU!

No, I'm in the contracts office. The three part test referred to above would be administered by the Ethics office in OGC, so Ethics would be integrally involved if this request is submitted.

You are correct that OGC may block this action in accordance with their three part test. But I've been asked to research the "what if." I see FAR 3.1 directing the avoidance of the appearance of impropriety. And FAR 9.505 directs the CO to use common sense and good judgment when analyzing potential conflicts of interests. Are these the only two standards that I should be considering? Or is there something that I'm missing? Thanks!

Fact Pattern: A company wants to gift/donate to an agency personal property (e.g., office furniture). The personal property would be used for everyday use by agency personnel (e.g., desks, file cabinets) in the agency's offices. In the past and future, the agency sometimes issues brand-neutral competitive solicitations for personal property of this general type, and the company may be a past contractor or a future potential offeror on such procurements. The motivation for the gift and the timing of past and future solicitations are not known. Question: Can the agency accept the gift? And, if so, will the company submitting the gift be excluded from competition on future solicitations for this type of personal property? From this post and GAO B-289903, I gather that without statutory authority, agencies may not accept gifts to supplement their appropriations. I verified that the agency in question had such statutory authority to receive gifts of personal property. The agency's Office of General Counsel (OGC) also had published written guidance on the topic of when the agency could receive gifted personal property from a non-governmental organization. While the hypothetical company in question may be considered a "prohibited source" (because it is a potential contractor) in the context of this OGC guidance, the guidance states that a gift could be accepted from a prohibited source if a three-part test is met (e.g., percentage of contractor's business with the agency, timing of gift in relation to solicitations). Assuming that OGC finds that the three part test is met and the gift may proceed, are there any other regulatory or legal issues that would prevent the contractor from competing in upcoming procurements? I have concerns regarding the appearance of impropriety, but I need to base my analysis on cited sources. Thank you!