John Ford on Monday,
April 17, 2000 - 04:55 pm:
Vern and Joel have hit on points
I was thinking of. Who owns the land on which the prison is
being built? If the contractor owns the land, how do you intend
on acquiring that? Is it covered by the contract? If not, you
may have a takings issue. The same applies to the structure
itself. If the contractor "owns" it although it is under
construction, if you change the contract to government
ownership, you again raise the spector of a taking.
Eric Ottinger on
Monday, April 17, 2000 - 11:03 am:
Scott & Vern,
I meant that that my questions were "dumb." By that I meant only
that I was asking tedious and obvious questions.
Many apologies for any confusion.
I think an advisor opinion would be the way to go, if you can.
joel hoffman on Monday, April 17, 2000 - 10:50 am:
Scott, agree this is an
I believe for a change to be "in-scope", pursuant to the
"Changes Clause", it must be a matter that the Government can
unilaterally direct. A "change" cannot depend on whether or not
the Contractor agrees to it. The Contractor would not have the
choice not to lease the facility if it were "in-scope." Happy
Scott Stermer on Monday, April 17, 2000 - 10:44 am:
Thanks, I have written a similar opinion, quoting the exact same
cases and problems with the authority issues. It is kinda a gray
area. It would have to be scored by OMB in our budget request
and must get Congressional approval.
on Monday, April 17, 2000 - 10:31 am:
Your question of whether it would be within the scope of the
contract to change from contractor-owned and operated to
government-owned and contractor-leased is likely to draw a wide
range of conflicting opinions in this forum. I agree with you
that the change would be significant, but I cannot say whether
or not the change would be within scope.
Here are some things to think about:
There are three perspectives and two standards of analysis when
it comes to "scope" questions. The perspectives belong to (1)
the boards of contract appeals, (2) the General Accounting
Office, and (3) the Federal courts. The standards of analysis
are: (1) within the scope of the contract and (2) within
the scope of the original competition.
The boards and courts get involved when the government and the
contractor disagree whether a change is within the scope of the
contract, and they have tended to take a liberal view of scope
in such cases.
The GAO and the courts get involved when a firm other than the
contractor complains that the change is outside the scope of the
original "procurement" or "competition."
The Federal Circuit Court of Appeals has said:
"A modification generally falls within the scope of the original
procurement if potential bidders would have expected it to fall
within the contract's changes clause."
AT&T Communications, Inc. v. WilTel, Inc., 1 F.3d 1201 (1993).
If we take the court literally, then changing the relationship
in the way that you described probably would not be within the
scope of the original procurement, since it does not sound like
something that would be covered by the changes clause.
The GAO has said:
"In determining whether a modification triggers the competition
requirements in CICA, we look to whether there is a material
difference between the modified contract and the contract that
was originally awarded. Id.; see AT&T Communications,
Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993).
Evidence of a material difference between the modification and
the original contract is found by examining any changes in the
type of work, performance period, and costs between the contract
as awarded and as modified. MCI Telecomms. Corp.,
supra, at 7-8. We also consider whether the solicitation for
the original contract adequately advised offerors of the
potential for the type of change found in the modification,
CAD Language Sys., Inc., B-233709, Apr. 3, 1989, 89-1 CPD ¶
342 at 4, or whether the modification is of a nature which
potential offerors would reasonably have anticipated at the time
of the original award. American Air Filter Co.--DLA Request
for Recon., 57 Comp. Gen. 567, 573 (1978), 78-1 CPD ¶ 443 at
In my opinion, neither of these quotes answers your question
conclusively; but they suggest that the change might be beyond
the scope of the competition because (a) it is not something
covered by the changes clause and (b) it seems unlikely that the
original competitors would have anticipated it. But who knows? I
haven't seen the original RFP. If the change did, in fact, have
only a small impact on the contract price then the GAO or a
court might decide that the change is within scope.
You could ask the GAO for an advisory opinion.
One final thought: Government acquisition of real property is
governed by statutes and by regulations other than the FAR. See,
for example, 40 U.S.C. § 255. Before you attack the scope issue
you might want to examine the more fundamental issue of whether
or not BOP has the authority to acquire the ownership of the
property and what laws and regulations you would have to comply
with to do so. You might find that there are also issues of
Congressional authorization or appropriation.
Your question was not dumb. In fact, I found it very
Eric Ottinger on
Monday, April 17, 2000 - 09:44 am:
Yes, I think you have gone from a service contract to an
acquisition contract. (Leasing is a form of acquisition.)
I would agree that that is too much of a change in scope.
I think you need help from a smart lawyer. I doubt the argument
that the dollars haven't changed would be very effective with
the Comp. Gen.
scott stermer on Monday, April 17, 2000 - 08:18 am:
The contract is for a contractor owned and operated correctional
facility (prison) to house federal inmates. The contract is
performanced-based. The contract was awarded under best value,
trade-off. The contractor is currently building the facility. I
am being asked if we can modify the contract to lease facility,
the contractor would still operate it. The contract term is 3
year base period, with 7 one year option periods (10 years)
Currently, we do not have the authority to enter into a lease of
this size, without GSA involvement.
I feel this type of modification is outside the scope of the
original competition, it should not be done. However, there are
some who believe the value of the contract will remain the same,
so in sense we are only clairfying the contract. I disagree with
that, I feel we most likely would have entered into a lease for
a 20 year term, contractors could have gotten better financing
for the term and the Government cost would be less. Also, it
might have changed our "best value" decision.
I am not looking for answers just some feedback, if someone
thinks this type of change can be done, I want know that....so I
can provide an accurate analysis.
on Saturday, April 15, 2000 - 04:47 pm:
The current contract calls for the contractor to build a
facility, which the contractor will own, and then use the
facility to provide services to the Government. Is that correct?
Now, someone would like to modify the contract so that the
contractor will still build the facility, but the Government
would own it and then lease it back to the contractor to use to
provide the services. Is that correct?
Is the facility a prison?
By Scott Stermer on Friday,
April 14, 2000 - 11:24 am:
The facility is under
construction, and owned by the contractor. What I have been
asked to do, is modify the exisitng contract, to incorporate a
lease of the facility, contractor would still operate the
I think the modification falls beyond the scope of the original
competition. There is some diifference on that matter
By joel hoffman on Friday, April
14, 2000 - 10:45 am:
1. Is this a "COCO" facility?
2. Please explain what you mean by the question can you modify
the contract "to lease the facility"? Contractor leases it? to
whom? for what- same purpose?
Thanks! Happy Sails.......
Eric Ottinger on
Friday, April 14, 2000 - 10:45 am:
Under the current contract, who has title to the facility? Has
the Government inspected and accepted? Who will lease from whom?
scott p. stermer on Friday, April 14, 2000 - 10:14 am:
A year ago I awarded a performanced based service contract which
called for the contractor to construct and operate the facility.
Recently, I have been asked if we could modify the contract to
lease the facility.
The original solicitation contained no leasing options.
If anyone can provide me some feedback I would really appreciate