"In-Scope" Modification of $90k to a $160k award

[GovtAcctGeek]

I have a question about synopsizing and competing regulations.  I work at a civilian Bureau and everything here is about Services that are commercial items using SAP and under the SAT.  I already reviewed the helpful forum topic Making Sense of FAR 5.202(a)(11), but that is about Construction, and the other two posts I found were more about large scale acquisitions and IDIQs / Orders. 

Last year we awarded a $150k contract with 4 line items, 1 base and 3 options, all exercised at time of award, to effectively do a lot of data management and digitization over the course of a year.

Line 1 was newer data, line 2 was data older than 5 years, line 3 was data older than 10 years, line 4 was analog stored data. 

The COR just called me and said they have a lot more data than they first estimated, and the work is progressing fine, but total hours of work required are higher, and they want a Modification to effectively extend the POP by a year and obligate up to $90k more funds for this work. 

I believe that this would be an in-scope modification because all of the work is the same, it is just ultimately going to be more hours of that work. 

FAR 5.101(a)(2) says a "contract action" over $25,000 must be synopsized to the GPE.

FAR 5.001 defines "contract action" as "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".  

I feel like this example is covered under FAR 5.202(a)(11), which exempts it by: "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;".

If this is an in-scope Modification, would this count as a "contract action" per FAR 5.001, or is it exempt from FAR 5.101(a)(2) in accordance with FAR 5.202(a)(11)?  

If we synopsize it to the GPE , would any vendor have reasonable grounds to protest such a Modification if they don't like that it is not being competed as a brand new award? 

 

Thank you for any insight you have. 

[ji20874]

You decide if the change is within scope, not us.  If you decide it is within scope, then you do not need to synopsize it.

You haven't provided enough information for anyone here to tell if the change is within scope.

Yes, another vendor could protest the modification.

[Vern Edwards]

@GovtAcctGeekYou asked:

13 hours ago, GovtAcctGeek said:

If this is an in-scope Modification, would this count as a "contract action" per FAR 5.001, or is it exempt from FAR 5.101(a)(2) in accordance with FAR 5.202(a)(11)?

As you said in your post, the definition of "contract action" in FAR 5.001 includes "actions for additional supplies or services outside the existing contract scope," but does not include "actions that are within the scope and under the terms of the existing contract..."

The requirement to synopsize stated in FAR 5.101(a)(2) and 5.201 applies to "proposed contract actions". If the additional work is within scope, then it is not a proposed contract action. If it is not a proposed contract action, then 5.101(a)(2) and 5.201 do not apply, you need not synopsize, and the exemption at FAR 5.202(a)(11) is inapplicable and irrelevant.

However, you said:

13 hours ago, GovtAcctGeek said:

I believe that this would be an in-scope modification because all of the work is the same, it is just ultimately going to be more hours of that work. 

That belief is unjustified, because the fact that the work to be added is of the same nature as the work already under contract does not, in and of itself, justify your belief that the work to be added is within the scope of the existing contract. I suggest that you do some reading about the concept of contract scope.

[C Culham]

To assist...GAO has stated the matter of scope essentially the same way throughout its decisions.   Just thought I would drop an excerpt from one decision to peak your interest to do further reading as recommended with many more available in one spot here - http://www.wifcon.com/pd6_001.htm   

 

"To determine whether such a material difference exists, we review the circumstances attending the procurement that was conducted; examine changes in the type of work, performance period, and costs between the contract as awarded and as modified; and consider whether the original contract solicitation adequately advised offerors of the potential for this type of modification and thus whether the modification could have changed the field of competition."