napolik

After reading the Administration of Government Contracts, 4th edition, pages 385-86, I conclude that, in this case, the application of the ?cardinal change? principle requires the contracting officer to consider whether or not the changes are ?? within the scope of the competition conducted to achieve the original contract.? AT&T Communications, Inc. v. WilTel, Inc, 1F.3d 1201 (Fed. Cir. 1993). GAO elaborated on this in Neil R. Gross & Co. (B-237434, February 23, 1990): ?In weighing the propriety of a modification, we look to whether there is a material difference between the modified contract and the prime contract that was originally competed. Indian and Native American Employment and Training Coalition, 64 Comp.Gen. 460 (1985), 85-1 CPD Para. 432. (In) determining the materiality of a modification, we consider factors such as the extent of any changes in the type of work, performance period and costs between the contract as awarded and as modified. See American Air Filter Co., Inc., 57 Comp.Gen. 285 (1978), 78-1 CPD Para. 136, aff'd on reconsideration, B-188408, June 19, 1978, 78-1 CPD Para. 443. We also consider whether the solicitation for the original contract adequately advised offerors of the potential for the type of changes during the course of the contract that in fact occurred, CAD Language Sys., Inc., B-233709, Apr. 3, 1989, 89-1 CPD Para. 342, or whether the modification is of a nature which potential offerors would reasonably have anticipated under the changes clause. American Air Filter Co., Inc., 57 Comp Gen. 285, supra.? In the Gross decision, GAO found the change to be beyond the scope of the contract. The GAO has applied this ?within the scope of the competition? guideline to a protest involving refuse collection at Fort Rucker, Alabama - Atlantic Coast Contracting, Inc., (B-288969.4, June 21, 2002). Atlantic Coast protested a change to a contract with four options totaling $2,819,990. The change shifted responsibility for furnishing trucks and containers from the Army to the contractor, increasing the unit price for the item from $11,399 to $22,467.25 and increasing the total contract price for the remaining 4 years and 6 1/2 months by $603,220. ?In determining whether a modification triggers the competition requirements under CICA, we look to whether there is a material difference between the modified contract and the contract that was originally awarded. Engineering & Prof?l Servs., supra, at 4; 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 changes in the type of work, costs, and performance period between the contract as awarded and as modified. MCI Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD para. 90 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, and thus whether the modification would have changed the field of competition. Id. ? In the end, the GAO concluded that the change in the refuse collection contract was not outside the scope of the contract. ?Atlantic also argues that the significantly increased cost to the unit price for this line item of services establishes that the modification exceeded the scope of the contract. However, where, as here, it is clear that the nature and purpose of the contract have not changed, a substantial price increase alone does not establish that the modification is beyond the scope of the contract. While the contractor's unit price for the service did substantially increase, the Army noted that this price was lower than Atlantic's price for performing the same service. Thus, we find that the increased cost is not in this case persuasive evidence that the modification exceeded the contract's scope. See Techno-Sciences, Inc., B-277260.3, May 13, 1998, 98-1 CPD Para. 138 at 8; Defense Sys. Group et al., B-240295 et al., Nov. 6, 1990, U.S. Comp. Gen. LEXIS 1182 at *11-13. As you see, Atlantic?s higher unit price helped to sway GAO?s decision. In your case, the dollar value increases of the changes could have led the contracting officer to conclude that the changes were beyond the scope of the competition. Or, the contracting officer may have concluded that he or she could get a better deal since the volume of services has increased so much.

Why don't you call the contracting officer to ask why the soliciataion was cancelled? In any event, I recommend that you answer the agency's questions. You may be able to infer why the contracting office cancelled the solicitation from this FAR cite: 15.206 (e) If, in the judgment of the contracting officer, based on market research or otherwise, an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

I assume that one could do this without reopening discussions with all offerors by making the source selection based upon use of a realistic, adjusted cost after completion of a cost realism analysis.