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We awarded a contract for sidewalks, with several items being estimated quantities. The end user wants to add more sidewalks that were not on the original drawings provided with the specs, but the sidewalks will be on the same campus, and will have the same sidewalk spec requirements. They want to do it as a mod to the contract. FAR 52.243-5 Changes and Changed Conditions is in the contract, as is FAR 52.211-18 Variation in Estimated Quantities. I don't think it's a variation in quantity when the sidewalks being added weren't on the original drawings, but I'm wondering if it is a change or if it is new work. I appreciate your feedback.

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We awarded a contract for sidewalks, with several items being estimated quantities. The end user wants to add more sidewalks that were not on the original drawings provided with the specs, but the sidewalks will be on the same campus, and will have the same sidewalk spec requirements. They want to do it as a mod to the contract. FAR 52.243-5 Changes and Changed Conditions is in the contract, as is FAR 52.211-18 Variation in Estimated Quantities. I don't think it's a variation in quantity when the sidewalks being added weren't on the original drawings, but I'm wondering if it is a change or if it is new work. I appreciate your feedback.

Its not a variation in estimated quantities, because you are apparently adding work that wasn't included in the original scope of work indicated in the contract drawings. I am assuming that the drawings indicate where sidewalks are to be constructed. That will probably answer your question.

I'm curious, though. Roughly how much additional quantities of sidewalks are involved and is this a small percentage of the existing scope?

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You have to look at your original specs or statement of work, as Mr. Hoffman said. Remember, there are really two aspects to contract scope/changes:

The first is whether you can require the existing contractor to perform the work. This really only becomes problematic if you want it done without paying any additional money. Most contractors are more than willing to do whatever they can if you're willing to pay for it. I'm not saying that having the money to pay for it necessarily justifies adding out-of-scope work; I'm just discussing the realities of my experience.

The second issue is whether another contractor--not the incumbent--could protest that you have violated the rules on competition by adding out-of-scope work. That's going to depend on what your original solicitation said. If the original solicitation and the resulting contract were to, for example, build all sidewalks across an entire campus, with estimated quantities and representative locations, then you probably have an in-scope change because this is a broadly conceived contract. If your specs were very finite and detailed, e.g., to add all sidewalks connecting the dorms and the cafeteria, and now you want to add sidewalks outside the gym, which is on the other side of campus, you may have problems.

And now the paid political announcement: talk to your program attorney. :lol:

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I concur that it's undoubtably new work rather than a variation in quantity. That said the work could still be added to the contract (using 52.243-5 or supplemental agreement) provided its in scope. GAO's opinion regarding scope is:

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. MCI Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD ? 90 at 7. 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. Atlantic Coast Contracting, Inc., B-288969.4, June 21, 2002, 2002 CPD ? 104 at 4. 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. DOR Biodefense, Inc.; Emergent BioSolutions, supra.

As a general rule of thumb you can consider the price change that you expect to result from the change. If it's marginal (~10%) it's probably in scope; but, if it's significant re-compete.

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As a general rule of thumb you can consider the price change that you expect to result from the change. If it's marginal (~10%) it's probably in scope; but, if it's significant re-compete.

Dtes,

Please provide your justification that a ?marginal~10%? change is within scope.

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I get the impression (hopefully mistaken) from K-Law's post that a potential violation of CICA is only problematical if you think someone will protest.

Is whether or not someone protests the standard for determining if a CICA violation exists? If no one protests is there a CICA violation? What is the consequence of a CICA violation if no one protests?

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Guest Vern Edwards

Whynot:

Your last two posts are ridiculous. K-Law Atty said nothing to warrant your responses to his post.

dtes:

You wrote: "As a general rule of thumb you can consider the price change that you expect to result from the change. If it's marginal (~10%) it's probably in scope; but, if it's significant re-compete."

You are wrong. Read, e.g., Nash and Feldman, Government Contract Changes, 3d ed. (Thomson-West, 2007), Vol. I, pp. 75-76:

"As one author points out, it would be an error to conclude that within scope changes can be resolved by simply making an automatic mathematical comparison of the contract price with the cost of the change. The case law contains a 'startling array' of seemingly inconsistent outcomes. For example, one decision held that adding a wing to a hospital under construction at an increase in cost of 33% was out of scope whereas a change on a supply contract that increased the contract price by 170% was within scope."

In any case, your statement is absurd on its face, since it would be absurd to call a 10 percent change to a $1 billion contract "marginal."

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Whynot:

Your last two posts are ridiculous. K-Law Atty said nothing to warrant your responses to his post.

dtes:

You wrote: "As a general rule of thumb you can consider the price change that you expect to result from the change. If it's marginal (~10%) it's probably in scope; but, if it's significant re-compete."

You are wrong. Read, e.g., Nash and Feldman, Government Contract Changes, 3d ed. (Thomson-West, 2007), Vol. I, pp. 75-76:

In any case, your statement is absurd on its face, since it would be absurd to call a 10 percent change to a $1 billion contract "marginal."

I agree entirely with Vern. I tried hard NOT to give the impression that I was condoning out-of-scope changes just because no one would protest. Rereading my post I don't think that's what I said. My point was that the controvery over scope often arises because the government doesn't want to pay for a change that the contractor thinks is out of scope. The FAR clearly envisions changes to the contract (that's why we have a changes clause), and if the government is willing to pay and the contractor is willing to perform, then the scope of the change may not ever become an issue.

As to the "percentage," case law is very clear that numbers alone cannot determine whether a change is within scope. The nature of the work is often far more important that the numerical extent. And so I beat my almost dead horse a little more: Talk to your attorney.

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K-Law

"The second issue is whether another contractor--not the incumbent--could protest that you have violated the rules on competition by adding out-of-scope work."

You could have just written

"The second issue is whether you have violated the rules on competition by adding out-of-scope work."

No reason whatsover to refer to a possible protest.

But, I see that was not your intention.

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Guest Vern Edwards

This topic has come up and been addressed so many times that I cannot count them.

It's really quite simple: When any contract modification affects price and/or delivery, the question may arise whether the modification is "within scope." This question arises in two contexts:

1. Whether the government has the authority under the Changes clause to order the contractor to comply with the modification. This is the scope of the contract issue.

2. Whether the modification is "new work" for which the contracting officer should obtain competition for the work. This is the scope of the competition issue.

Rather than rehash it here for the umpteenth time, I refer everyone to Administration of Government Contracts, 4th ed., by Cibinic, Nash, and Nagle, who discuss the issues in depth in pages 382-396. The authors discuss the two issues at length. There is no excuse for ignorance.

One last thing: dtes wrote, "I concur that it's undoubtably new work rather than a variation in quantity. That said the work could still be added to the contract (using 52.243-5 or supplemental agreement) provided its in scope."

That doesn't make sense, because "new work" is, in ordinary usage, work that is out of scope. If the work is out of scope, then it cannot be added by 52.243-5, which limits changes to those within the scope of the contract.

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Recognizing that not everyone will have a copy of the Changes treatise (although if you don't, your contracts attorney should), GAO also has a good discussion in the Red Book (their fiscal law guidance) on scope when dealing with what money to use. And they just issued a new decision on scope.

B-401628, Outdoor Venture Corporation, October 2, 2009

http://www.gao.gov/decisions/bidpro/401628.htm

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Guest Vern Edwards

The language in that GAO decision is typical of the sloppy language that GAO has used in recent years:

In determining whether a task or delivery order is outside the scope of the underlying contract, and thus falls within CICA’s competition requirement, our Office examines whether the order is materially different from the original contract. Evidence of a material difference is found by reviewing the circumstances of the original procurement; any changes in the type of work, performance period, and costs between the contract as awarded and the order as issued; and whether the original solicitation effectively advised offerors of the potential for the type of orders issued. Overall, the inquiry is whether the order is one which potential offerors would have reasonably anticipated. Specialty Marine, Inc., B-293871, B-293871.2, June 17, 2004, 2004 CPD para. 130 at 4.

That makes no sense, because in-scope work might be "materially" different, depending on how you define "material." On the other hand, out-of-scope work might be of the same "type" of work called for under the original contract or order.

Sloppy, sloppy, sloppy. Half-baked.

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