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FAR 5.202(a)(11) states the following exception to synopsis:

The proposed contract action is made under the terms of an existing contract that was previously synopsized in sufficient detail to comply with the requirements of 5.207 with respect to the current proposed contract action.

FAR 5.001 defines "contract action" as follows:

“Contract action,” as used in this part, means an action resulting in a contract, as defined in Subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.

Question: Given the definition of "contract action", how is it possible to make a "contract action" under the terms of an existing contract as described in FAR 5.202(a)(11)?

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  • 5 months later...
Guest Vern Edwards
As a result of the site condition, additional work will need to be performed in order to complete the requirements of the original contract. The additional work would be considered out of scope but FAR 6.302-2 applies and justification is approved.

Be clear. What do you mean when you say that the "additional" work is the "result" of the differing site condition? What do you mean by "additional"? What do you mean by "result"? Do you mean that upon discovery of the actual conditions at the site the parties realized that in order to complete the project the contractor would have to do work that neither party had anticipated? Do you mean something else? Explain.

If the additional work is necessitated by the previously unknown site conditions, in what way was it "out of scope"? Did the parties change the end result of the project, or just the constituent effort?

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Don - Agree it is confusing but think that in the end it reads right unless I have even confused myself.

I think it says this.

Contract action, for the purposes of synopsizing, is any contract, as defined in 2.1, that is outside the scope of existing contract but that a contract action, for the purposes of advertising, is not a an action within the scope such as a….

To me it kind of expands on the definition of “contact” by saying that a modification authorized under an existing contract and administrative modifications are not contracts and therefore not a contract action.

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Don,

What if you have a construction contract for repair which was previously synopsized in accordance with 5.207.

During the projects period of performance, the contractor encounters differing site conditions. After following the procedures of the clause, the CO determines that the differing site condition is a category two (2) condition.

As a result of the site condition, additional work will need to be performed in order to complete the requirements of the original contract. The additional work would be considered out of scope but FAR 6.302-2 applies and justification is approved.

The new work is negotiated and incorporated via 52.236-2, Differing Site Conditions or may the Changes clause. The new work is considered minor construction (MC) and new funding is added to the contract.

Would the “contract action” be the bilateral modification for the new work? The bilateral modification would result in a contract (binding legal relationship –FAR Part 2). The modification is outside the contract scope of the original contract . Other than funding and the inclusion of addition work, all other terms of the existing contract remain unchanged.

Locke, I'm confused. Please clarify how, due to a differing site condition, "additional work" that is required to be performed in order to complete the work would be out of scope. You said that "[t]he new work is negotiated and incorporated via 52.236-2, Differing Site Conditions or may[be] the Changes clause. The new work is considered minor construction (MC)..." What is this "additional work" and why is it out of scope?

I do know of instances where contractors have encountered hazardous materials, pursuant to a Type 2 Differing Site Condition under the DSC. The conditions required mitigation and/or removal - and there otherwise was no requirement for mitigation or removal of hazardous materials in the original contract. Therefore, due to the greatly increased potential risk to workers and the Contractor, such work is then has been considered to be out of scope and required a out-of-scope, supplemental agreement to add to the contract. The Government cannot direct the out of scope work under the Changes clause.

But here you said that this particular situation might be considered a change under the Changes clause. How can that be?

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Don,

What if you have a construction contract for repair which was previously synopsized in accordance with 5.207.

The additional work would be considered out of scope but FAR 6.302-2 applies and justification is approved.

Locke, In response to what I think is your first question regarding a need to post a synopsis in the event that you add work to an existing contract. You added the work, using an out of scope supplemental agreement, under the exception to competition due to urgent and compelling circumstances,. See FAR 5.202 - Exceptions:

.

"The contracting officer need not submit the notice required by 5.201 when --

(a) The contracting officer determines that --

...(2) The proposed contract action is made under the conditions described in 6.302-2 (or, for purchases conducted using simplified acquisition procedures, if unusual and compelling urgency precludes competition to the maximum extent practicable) and the Government would be seriously injured if the agency complies with the time periods specified in 5.203;.."

I do have some doubts concerning whether or not you understand the difference between in-scope and out-of-scope modifications, however.

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Joel,

Out-of-scope modification: A contract is awarded for the production of 10 widgets. After award, the CO changes the number of widgets from 10 to 100. This would be out of scope.

In-scope: A contract to install a fence is awarded. The contract specifies that the post are to be buried 4 feet below the ground. During the installation phase, the contractor discovers sprinkler lines two feet below the ground where one of post needs to go. For whatever reason, neither the government or the contractor had reason to know that sprinkler lines were buried in the location of the fence project. The determination is made to reroute a portion of the sprinkler line to make way for the post. The cost is negotiated and a modification to include the new work to the fence project is issued. Because the reroute work does not change the "intent" (not sure if intent is the best word) of the original contract, it would not be considered out-of-scope. If the line did not interfere with the fence project and it was added because the user had extra money to spend, then it would be out-of-scope.

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Locke, so far, so good. If this was a fence installation project and the user wanted to add a sprinkler system, yes it would be out of scope.

Moving the sprinkler system to accommodate the fence installation would probably be an in-scope modification.

A Mod for increased quantity of widgets would be an example of an out-of-scope mod on a supply contract.

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