Within Scope or Not

[baierle]

Hi-

I have a competitively awarded, commercial purchase for five widgets. Prior to delivery of these widgets, client desires six widgets due to a mission change. Is this within scope? May I add another widget to this order without doing JOFOC (J&A)? I will appreciate any guidance.

[baierle]

I understand that I can't use the FAR 52.212-4© changes, but if a mutual agreement can be struck, is doing a mod to increase quantity within the scope?

\

Hi-

I have a competitively awarded, commercial purchase for five widgets. Prior to delivery of these widgets, client desires six widgets due to a mission change. Is this within scope? May I add another widget to this order without doing JOFOC (J&A)? I will appreciate any guidance.

[civ_1102]

Whether or not a change is within scope has nothing to do with whether a change is issued unilaterally or bilaterally. In essence, a bilateral change is no different than the CO ordering a change unilaterally through the changes clause except that, when doing it bilaterally, you are getting agreement on the price, and any other terms and conditions of the change, up front.

As a general rule, unless you have an IDIQ, requirements, or other indefinite quantity type contract, adding additional supply quantities is not going to be in scope.

[napolik]

Hi-

I have a competitively awarded, commercial purchase for five widgets. Prior to delivery of these widgets, client desires six widgets due to a mission change. Is this within scope? May I add another widget to this order without doing JOFOC (J&A)? I will appreciate any guidance.

I recommend you read the fourth edition of the Administration of Government Contracts, by Cibinic, Nash, and Nagle, pages 382-396. The discussion distinguishes between the concepts of "scope of the contract" and "scope of the competition". Your question is involves the scope of the competition.

If delivery of the 5 "widgets" was the primary purpose of the contract, I believe adding a 6th widget would be outside the scope of the competition and would require a J&A. If your solicitation had discussed "upgrading" or "refreshing" the widgets periodically, the "upgrades" or "refreshes" probably would be within the scope of the competition.

If the primary purpose of the contract was to provide a machine tool plus 5 spare "widgets", I believe that the addition of a 6th widget would be within the scope of the competition.

Read pages 382-396 of the book.

[napolik]

As a general rule, unless you have an IDIQ, requirements, or other indefinite quantity type contract, adding additional supply quantities is not going to be in scope.

With an ID contract, you can have scope issues with additional quantities:

"An order in excess of the maximum quantity stated in the contract would be outside the scope of the contract. Such an order would result in a contract materially different from that for which the original competition was held and, absent a valid sole-source determination, would be subject to CICA requirements for competition." See Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD.

[civ_1102]

Correct..I phrased that inartfully, my intentions were to say that those are the primary contract types that permit flexibility on quantity if you have a supply contract.

[ji20874]

When I see JOFOC (Justification for Other than Full and Open Competition) and J&A (Justification and Approval), I tend to think of FAR Subpart 6.3.

The poster didn't share any dollar figures, but a JOFOC and J&A will only be needed if the sixth widget sole source acquisition falls under FAR 6.302, 6.303, and 6.304 -- but a sole source acquisition (even for a modification to an existing contract) might also be supported in other ways. If the price of the sixth widget is under the simplified acquisition threshold, then FAR 13.106-1( gives a sole source authority requiring only that the contracting officer determine that only one source is reasonably available -- no JOFOC or J&A, as those terms are understood in FAR Subpart 6.3, is needed. If the sixth widget fits under the test program for certain commercial items, then FAR 13.501(a) provides a sole source authority, but does require the format of a FAR Subpart 6.3 justification. If the contract in question is a task order under a GSA schedule contract, then FAR 8.405-6 gives a sole source authority. In none of these cases would I title my document a JOFOC -- it is a sole source determination or justification, true, but "Other than Full and Open Competition" seems to invoke FAR Subpart 6.3, and all of these three approaches (SAP, test program 13.5, and GSA Schedules) are specifically exempt from FAR Subpart 6.3 (and FAR Part 6 as a whole). So I wouldn't use a FAR Subpart 6.3 term in a FAR 13.106-1(, 13.501, or 8.405-6 determination or justification document.

I like napolik's explanation regarding scope.

[Don Mansfield]

If the price of the sixth widget is under the simplified acquisition threshold, then FAR 13.106-1( b ) gives a sole source authority requiring only that the contracting officer determine that only one source is reasonably available -- no JOFOC or J&A, as those terms are understood in FAR Subpart 6.3, is needed.

Technically, the threshold doesn't matter--it's the use of SAP that relieves one of the requirement to comply with FAR Part 6. You could have use SAP for acquisitions above the SAT (Part 6 would not apply) and not use SAP for acquisitions below the SAT (Part 6 would apply).

6.001 Applicability.

This part applies to all acquisitions except?

(a) Contracts awarded using the simplified acquisition procedures of Part 13...

[baierle]

Technically, the threshold doesn't matter--it's the use of SAP that relieves one of the requirement to comply with FAR Part 6. You could have use SAP for acquisitions above the SAT (Part 6 would not apply) and not use SAP for acquisitions below the SAT (Part 6 would apply).

Thank you all for your input. We have notified the client that their request is out of scope. Napolik's description helped put it into perspective for me.

To be clear, we used demo procedures at 13.5 as this was commercial items-- at about $90K each.

So, if client decides to go forth with the extra widget, may I presume they need to prepare J&A (JOFOC), no? The additional item will be under $100K, but I don't believe that will release anyone from the requirement for such justification. I appreciate all of the guidance, dialogue, etc. I learn every single day!!

[Don Mansfield]

You can avoid having to do the J&A by using SAP to acquire the extra widget. Follow the procedures at FAR 13.106-1(.

[Vbus]

In the future, if your customer may require additional widgets, you could include the option for more. You would need to specify the potential optional amount, include FAR 52.217-6 Option for Increased Quantity in the solicitation and award, and ensure you evaluate the optional quantities as part of the overall price evaluation.

[Don Mansfield]

In the future, if your customer may require additional widgets, you could include the option for more. You would need to specify the potential optional amount, include FAR 52.217-6 Option for Increased Quantity in the solicitation and award, and ensure you evaluate the optional quantities as part of the overall price evaluation.

FAR 52.217-6 isn't required. FAR 52.217-7 could be used or a clause substantially the same as either FAR 52.217-6 or -7.

[Vbus]

FAR 52.217-6 isn't required. FAR 52.217-7 could be used or a clause substantially the same as either FAR 52.217-6 or -7.

Don,

I thought you used 52.217-6 (or one substantially the same) if you want the option for additional quantities of an item you are already buying, and you used 52.217-7 (or one substantially the same) if you want the option for some quantity of items that you aren't already buying. In baierle's case, he's already buying 5 widgets and he could include 52.217-6 to state that the Government has the option to buy more of those same widgets at that same price. My understanding is that he'd use 52.217-7 if he wanted to buy a different product spelled out on a different line item where the award quantity is 0.

Have I got this mixed up?

[Don Mansfield]

Don,

I thought you used 52.217-6 (or one substantially the same) if you want the option for additional quantities of an item you are already buying, and you used 52.217-7 (or one substantially the same) if you want the option for some quantity of items that you aren't already buying. In baierle's case, he's already buying 5 widgets and he could include 52.217-6 to state that the Government has the option to buy more of those same widgets at that same price. My understanding is that he'd use 52.217-7 if he wanted to buy a different product spelled out on a different line item where the award quantity is 0.

Have I got this mixed up?

When in doubt, read the prescriptions. FAR 17.208 states:

(d) Insert a clause substantially the same as the clause at 52.217-6, Option for Increased Quantity, in solicitations and contracts, other than those for services, when the inclusion of an option is appropriate (see 17.200 and 17.202) and the option quantity is expressed as a percentage of the basic contract quantity or as an additional quantity of a specific line item.

(e) Insert a clause substantially the same as the clause at 52.217-7, Option for Increased Quantity?Separately Priced Line Item, in solicitations and contracts, other than those for services, when the inclusion of an option is appropriate (see 17.200 and 17.202) and the option quantity is identified as a separately priced line item having the same nomenclature as a corresponding basic contract line item.

So, it depends how you want to express the option. You could include the option to buy more of the same widgets within a line item or as a separate line item.

[charles]

More food for thought.

Increases and decreases in the quantity of major items or portions of the work are generally considered to be outside the scope of a contract. See, e.g., Valley Forge Flag Co., Inc., VABCA Nos. 4667, 5103, 97-2 BCA ? 29,246 (stating that in a requirements contract, a major increase in the total quantity of flags ordered was outside the scope of the contract); Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD ? 413 (order in excess of maximum quantity was a material change). But see Master Security, Inc., B-274990, Jan. 14, 1997, 97-1 CPD ? 21 (tripling the number of work sites not out-of-scope change); Caltech Serv. Corp., B-240726.6, Jan. 22, 1992, 92-1 CPD ? 94 (increase in cargo tonnage on containerization requirements contract was within scope). Generally, increases are new procurements, and decreases are partial terminations for convenience. Cf. Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ? 23,609 (order was deductive change, not partial termination). Generally, the Changes clause permits increases and decreases in the quantity of minor items or portions of the work unless the variation alters the entire bargain. See Symbolic Displays, Inc., B-182247, May 6, 1975, 75-1 CPD ? 278 (addition of strobe lights to aircraft manufacturing contract was not an ?evident? out-ofscope change). Cf. Lucas Aul, Inc., ASBCA No. 37803, 91-1 BCA ? 23,609. See also Kentucky Bldg. Maint., Inc., ASBCA No. 50535, 98-2 BCA ? 29,846 (holding that agency clause that supplements the standard Changes clause was not illegal).