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Solicitation stated required contractor/guard ratio of 3:1 --- award made on that basis. Due to circumstances and resultant costs, contract award now under review to revise ratio to 7:1 (which does not decrease the amount of spend, but would preclude/negate additional increases). Would this be considered "outside the scope, or a substantial change"?

As usual there are differing 'opinions' here as to which way to go on this...

Thanks in advance for your input!!

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Guest Vern Edwards

I'm not sure I understand the change.

If the contract expressly specifies the contractor's obligation in terms of the number of guards that it must provide, i.e., one for every three contractor employees, and then the change reduces that obligation to one for every seven contractor employees, then it seems to me that the change is a reduction in the scope of the contractor's obligation, i.e., a reduction in the scope of the contract (by more than half). The key is that the contract specifies the obligation in terms of the number of guards--it specifies the ratio. A significant change in the specified ratio/number would, by definition, be a change in scope.

What you would have, in effect, is a partial termination for convenience.

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Vern, thanks for the timely and informative reply...!!! Having established this very point myself (that this DOES constitute a change) there is now a concern as to whether/not we would be opening ourselves to potential protest(s) if we modify the newly awarded contract --- particularly as the "3:1 ratio" was a primary cost driver for this requirement.

My concern: If we now change the ratio from 3:1 to 7:1 that means the requirement is more than halved --- which in-turn means other potential vendors would only have needed half as many 'guards' as originally estimated. (That alone may have allowed others vendors to participate.) Your thoughts...???

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Guest Vern Edwards

If you got a protest you might have grounds for concern. See the GAO's decision in Poly-Pacific Technologies, Inc., Comp. Gen. Dec. B-296029, June 1, 2005, in which it sustained a protest three years after the award of contract on grounds that a deductive chance was outside the scope of the original competition, which had been held three years previously. I wrote about the decision for The Nash & Cibinic Report, "Postscript: Deductive Changes Outside The Scope Of The Contract," 19 N&CR ? 48 (October 2005). I said that the decision was bad law and bad policy, but I'm not Comptroller General so who cares what I think.

However, if you don't need the service you don't need the service, so issue a deductive change or partial T for C. If you awarded the contract recently and get a protest about the change you should consider settling it by agreeing not to exercise any options and to recompete. Of course, what you do should depends on many factors of which I am unaware and should take into account any advice from your counsel.

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