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Requirements Contract

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I have a requirements contract that has a min and max stipulated in the contract, but we're getting close to the maximum listed and we need to increase the max. Given that this is a requirements contract and not an IDIQ, must I still follow the guidance of a J&A supporting the change? I know about FAR 16.503(a)(1) and FAR 52.216-21(a), but I also read FAR 16.503(a)(1) and that states that the contract must state, if feasible, the maximum limit of the contractors obligation to deliver and the government obligation to order. Just want to know if the J&A is needed in order to increase the maximum amount? Thanks 

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Since the described increase is likely an out-of-scope change, you likely need an exception to the generally expected full and open competition requirements. However, without additional information, I can’t be sure what form that would take (e.g., justification and approval under FAR part 6 or subpart 13.5, single source determination under FAR subpart 13.1). 

Instead of peppering you with questions, I’ll provide what follows in hopes it will guide you in reaching your own sound conclusion based on your facts.

Note, the fact that you have a requirements contract rather than an IDIQ contract is not the determining factor. Since you are consideration a substantive modification, you must identify the authority you will rely on. Generally, modifications must be within the general scope of the contract.

“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 (over 109,000) was outside the scope of the contract); Liebert Corp., B-232234.5, Apr. 29, 1991, 91-1 CPD ¶ 413, 70 Comp. Gen. 448 (order in excess of maximum quantity was a material change).”

If increasing the maximum is out of scope, it must be treated as a new procurement under the Competition in Contracting Act (CICA). See CCL, Inc. v. United States, 39 Fed. Cl. 780, 791 (1997) (explaining that CICA’s requirements “cannot be avoided by using the device of contract modification”). 

Therefore, CICA will require you identify what permits contracting (e.g., issuing a modification for an out-of-scope change) without providing for full and open competition. Some contracting officers issue these types of modifications, for administrative convenience, under an approved justification and approval.

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