Severable Services and Modifications

[sailboater]

 

I have a contract to provide cyber security monitoring and analysis which are severable services.  I have a request to add another set of analysis, which would cost approximately 10% of the total contract value.  My legal team is telling me that since these are severable services, any additional work is consdered out of scope and must be done with a J&A.  The work is the same or similiar as what is currently being done and would not have changed the competition at time of award.  My question is, can you never add work to a severable services contract and call it within scope because there is a cost associated with it?  Can I also modify the option periods since they have not yet started?  Thank you in advance for any information!

[Guest Vern Edwards]

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 I have a request to add another set of analysis, which would cost approximately 10% of the total contract value. My legal team is telling me that since these are severable services, any additional work is consdered out of scope and must be done with a J&A.

A lot depends on what you mean by "another set of analysis" and "additional work." I'd say that if you want to add an analysis that is not integral to what is already under contract and that could be done under a separate contract with no effect on the work already underway, then the additional work is probably out of the scope of the original competition and you should do a J&A. If contracting for it separately would interrupt or otherwise delay work already under contract, then it is probably within scope and you don't need a J&A.

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My question is, can you never add work to a severable services contract and call it within scope because there is a cost associated with it?

You can add work to a severable services contract, even if it will cost more money, if the work is within scope. Suppose that you have awarded a contract for one year of equipment maintenance services and the SOW specifies three periodic electrical tests that you must perform on each item of equipment to ensure its readiness. Now the equipment manufacturer tells you that they've discovered that a fourth periodic test is necessary to ensure that the equipment functions properly. I'd say such additional work is within scope and you can add it without a J&A.

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Can I also modify the option periods since they have not yet started?  Thank you in advance for any information!

What do you mean by "modify"? Modify in what way? You can probably change the dates on which the option periods begin and end as long as you do not change the duration of the option periods. But a change to extend the duration of an option period is almost certainly out of scope and would require a J&A.

[sailboater]

Thanks Vern!  The example you provided puts it into perspective.  As for the options, essentially the new analysis work is repetitive, so it isnt just done once and is over, so the customer wishes for it to also be done in the option years.  So I am trying to determine if modifyig the option periods to incude this work can be done as a within scope change or does modifying the option periods really mean that I would need the J&A to add this extra analysis piece?

[Guest Vern Edwards]

If you modify the current contract to add within scope work, you add that work to the extension options, as well. When you modify the contract that is in effect, you modify all subsequent extensions of it.

[sailboater]

Terrific!  Really appreciate it Vern. That helps out a lot and can explain it to some of my other colleagues as we have had several discussions surrounding it.