Basis for CICA analysis - modification

Quote

In assessing whether there is a material difference, GAO will look to:

“[T]he extent of any changes in the type of work, performance period, and costs between the modification and the original contract, as well as whether the original solicitation adequately advised offerors of the potential for the change or whether the change was the type that reasonably could have been anticipated, and whether the modification materially changed the field of competition for the requirement.”

http://smallgovcon.com/gaobidprotests/in-scope-vs-out-of-scope-modifications-gao-explains-the-difference/

The general rule quoted above would not be applicable in this case.  Here, the contract has already been modified through a proper CICA compliant procedure.  In essence, what we have now is a single contract that satisfies two separate requirements that could have been satisfied through two separate contracts.  As stated above, the new requirement for Q is within the scope of the modified contract.  If that is the case, the modification is permissible under any of the standard FAR Changes clause that permit changes that are within the general scope of the contract and there is no cardinal change issue.  Remember, the contract includes all modifications that have been made to it, including any options that have been exercised.  See the definition of "contract" in FAR 2.101.

Talking about adding Q to XYZ cannot serve as the basis for a reliable answer.  I agree with Retreadfed to the degree that Q is a change within the general scope of the contract in one or more of the areas allowed by the contract's Changes clause. 

animalspirits, Are you talking about--

• Adding new work to the contract?, or 
• Making a change within the general scope of the contract in one or more of the areas allowed by your contract's Changes clause?

 

I suppose I should also ask (because we might be talking about a commercial item contract), Does your contract have a Changes clause such as FAR 52.243-x?  If so, which one?

Retreadfed said:

The general rule quoted above would not be applicable in this case.  Here, the contract has already been modified through a proper CICA compliant procedure.  In essence, what we have now is a single contract that satisfies two separate requirements that could have been satisfied through two separate contracts.  As stated above, the new requirement for Q is within the scope of the modified contract.  If that is the case, the modification is permissible under any of the standard FAR Changes clause that permit changes that are within the general scope of the contract and there is no cardinal change issue.  Remember, the contract includes all modifications that have been made to it, including any options that have been exercised.  See the definition of "contract" in FAR 2.101.

One needs to look at the original solicitation to see if Q is within the scope of the original competition.

napolik said:

One needs to look at the original solicitation to see if Q is within the scope of the original competition.

The original competition, if there was any, is irrelevant to this issue.  Note that animal spirits has already stated that Q is not within the scope of the original contract XY.  However, the original contract has been superseded by the revised contract XYZ.  Q  is within the scope of the revised contract.  Because Q is within the scope of the revised contract, no J&A is needed for Q because it is not a new procurement (cardinal change).

On 4/5/2019 at 2:57 PM, animalspirits said:

For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract.

One infers that Q services are within scope of the Z services. But, suppose they weren't. Suppose the facts were these.

Let’s say that XY covered electrical system repair services for a US Navy ship located at sea. Let’s say that Z services cover ferry services to transport sailors and goods to and from the ship. Now, let’s say that Q covers motor repairs on the ship.

If a motor repair contractor protested the issuance of the mod for Q services, do you think the GAO would look at the solicitation leading to the award of the electrical repair contract to determine if the motor repairs are in the scope of the electrical repair solicitation? Or, would GAO decline to review the scope of the competition leading to the award of the contract for XY services because the X services mod was issued?

On 4/5/2019 at 1:57 PM, animalspirits said:

Scenario: Contract is awarded for XY services. Government wanted to add Z, which was out of scope. Government prepared and issued adequate JOFOC. Current contract is now for XYZ services.

Question: Now Government is now attempting to add Q services to the contract. For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract. When deciding whether a JOFOC is required to add Q to the contract, may the Government's analysis be based on the current iteration of the contract (i.e. XYZ contract, meaning that Q is in scope and a JOFOC isn't required)? Or must the Government's analysis be based on the original contract at award (i.e., XY contract, meaning that Q is out of scope and a JOFOC is required)? Regulations or cases supporting your position would be helpful. THANK YOU!

If the change is within scope of the current contract requirements, it is authorized by the changes clause.

I'm waiting for animalspirits to answer the question whether or not the contract has a Changes clause, and if so, which one; as well as whether he or she is (1) adding new work or (2) making a change allowed by the contract's Changes clause.

I failed to specifically address a commercial item/service contract.

If the government was required to compete the original  requirement, the government generally isn’t allowed to add “new work” outside the scope of a contract be it a commercial item/service or not , without an exception to CICA.

In a commercial contract, if the government is allowed to add it, the contractor would have to agree and the terms of the mod would have to be mutually agreed upon. That is applicable whether it is in or out of scope. 

The parties to a commercial type contract aren’t free to simply “mutually agree” to add anything they like,  because “I am a contracting officer and here is my warrant number" and because the contractor is willing to accept the work.

The real question here is whether the added work is within or outside of the current contract  scope.

joel hoffman said:

If the change is within scope of the current contract requirements, it is authorized by the changes clause.

joel hoffman said:

The real question here is whether the added work is within or outside of the current contract  scope.

How does one determine if it is authorized by the changes clause or within or outside the current contract  scope?

On 4/5/2019 at 4:53 PM, napolik said:

One needs to look at the original solicitation to see if Q is within the scope of the original competition.

One needs to look at the current contract to see if Q is within the scope of the current contract. 

The OP said to assume for the sake of argument that it is. 

Then, read the applicable changes clause. 

One must understand that the out of scope work was added to the instant contract for administrative convenience.

After obtaining an exception to full and open competition, it could have been issued to the contractor in a separate contract or added to an existing contract. It makes economic sense to piggy back the new work onto an existing contract - use existing management, supervisory and admin resources, avoid re-mobilizing, startup activities, etc.

After adding the work, the terms and conditions of the contract, as modified, apply to the added scope, too.

joel hoffman said:

One needs to look at the current contract to see if Q is within the scope of the current contract. 

The OP said to assume for the sake of argument that it is. 

Then, read the applicable changes clause.

Before you ask, if Q is for ADDITIONAL supplies, it isn’t within the current scope...

Napolik, the GAO decision that you cited for your argument that one must examine the original scope of the competition did not involve a situation where work outside the scope of the original contract has already been added by supplemental agreement, as an exception to CICA.

“In this case, considering these factors, GAO found that the modification did not substantially change the scope of the original contract, competitors for the initial solicitation could have reasonably anticipated the changes to the contract, and the changes to the contract would not have had a substantial impact on the field of competition for the original contract award.”

So, the fact that ferry services were added to the contract for electrical repairs puts motor repairs within the scope?

I should have stated in the scenario, the modification to add Q would be bilateral. So I'm not worried about the contractor objecting, I'm worried about a third party thinking that the modification runs afoul of CICA and that Q should have been competed (or supported by a JOFOC).

There were questions above about whether it was commercial and whether the contract included a Changes clause. Let's say that the Contracting Officer's argument for Q being in scope is the following: either the PWS explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope) or the totality of the circumstances is such that any reasonably informed party being familiar with this industry and the work set forth in the PWS could have reasonably foreseen and anticipated that changes of this type would be required over the course of the contract and that, had the contract been originally solicited as XYZQ instead of XYZ, it is unlikely that the field of competition would have changed or the apparent awardee would have changed (as compared to soliciting XYZ). If that is the case, does commerciality or the presence of a Changes clause matter to the analysis? I was not aware of CICA analysis changing depending on commerciality, and the Changes clause is not a required authority for the modification's issuance nor a basis for the Contracting Officer's underlying scope argument.

I appreciate all the responses.

animalspirits said:

the Changes clause is not a required authority for the modification's issuance nor a basis for the Contracting Officer's underlying scope argument.

You've lost me here.  From what you have written before, it appears that the PWS will be changed to add work.  The PWS is a description of the services to be provided.  The Changes clause for services allows changes in the description of the services to be provided.  Further, the changes in the description of the services must be within the general scope of the contract.  If the Changes clause is not the basis for the "Contracting Officer's underlying scope argument," what is?

napolik said:

So, the fact that ferry services were added a the contract for electrical repairs puts motor repairs within the scope?

Who said that? I was referring to the original poster’s statements.Your scenario involves out of scope additional work.

EDIT: perhaps you are referring to animalspirits seemingly using Z to rationalize that XYZ -but not XY or Z  sepately - should have led the competition to anticipate Q at the XY only stage.  Which of course, makes no sense. Right?

animalspirits,

If your competitive solicitation "explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope)," then you should proceed with the negotiation of the bilateral modification to make the changes.

You are taking pains to keep things vague and avoid providing direct answers.  Why?  Why say, "Let's say ___ or ___"?  Which one is it?  Just tell us the facts.

animalspirits said:

I should have stated in the scenario, the modification to add Q would be bilateral. So I'm not worried about the contractor objecting, I'm worried about a third party thinking that the modification runs afoul of CICA and that Q should have been competed (or supported by a JOFOC).

There were questions above about whether it was commercial and whether the contract included a Changes clause. Let's say that the Contracting Officer's argument for Q being in scope is the following: either the PWS explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope) or the totality of the circumstances is such that any reasonably informed party being familiar with this industry and the work set forth in the PWS could have reasonably foreseen and anticipated that changes of this type would be required over the course of the contract and that, had the contract been originally solicited as XYZQ instead of XYZ, it is unlikely that the field of competition would have changed or the apparent awardee would have changed (as compared to soliciting XYZ). If that is the case, does commerciality or the presence of a Changes clause matter to the analysis? I was not aware of CICA analysis changing depending on commerciality, and the Changes clause is not a required authority for the modification's issuance nor a basis for the Contracting Officer's underlying scope argument.

I appreciate all the responses.

CICA analysis does not depend upon commerciality. 

 For non-commercial item service contract, if the  additional work is within the scope of the current contract then the changes clause authorizes the government to add it. As ji said, you can proceed to bilaterally add it but you could issue a change order to add it. 

 If this is a contract for commercial services or for non-commercial services, the government is not allowed to add out of scope work absent an exception to CICA, regardless of whether or not both parties agree to add the work. 

For commercial services contract, both parties have to agree to any changes in the terms and conditions - whether in-scope or out of scope. 

What is so difficult about this?

animalspirits said:

I should have stated in the scenario, the modification to add Q would be bilateral. So I'm not worried about the contractor objecting, I'm worried about a third party thinking that the modification runs afoul of CICA and that Q should have been competed (or supported by a JOFOC).

There were questions above about whether it was commercial and whether the contract included a Changes clause. Let's say that the Contracting Officer's argument for Q being in scope is the following: either the PWS explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope) or the totality of the circumstances is such that any reasonably informed party being familiar with this industry and the work set forth in the PWS could have reasonably foreseen and anticipated that changes of this type would be required over the course of the contract and that, had the contract been originally solicited as XYZQ instead of XYZ, it is unlikely that the field of competition would have changed or the apparent awardee would have changed (as compared to soliciting XYZ). If that is the case, does commerciality or the presence of a Changes clause matter to the analysis? I was not aware of CICA analysis changing depending on commerciality, and the Changes clause is not a required authority for the modification's issuance nor a basis for the Contracting Officer's underlying scope argument.

I appreciate all the responses.

CICA analysis does not depend upon commerciality. 

 For non-commercial item service contract, if the Additional work is within the scope of the contract then the changes clause authorizes the government to add it. 

 If this is a contract for commercial services, the government is not allowed to add out of scope work absent an exception to CICA, regardless of whether or not both parties agree to add the work. 

For commercial services contract, both parties have to agree to any changes in the terms and conditions.

What is so difficult about this?

EDIT:  To clarify, animal spirits indicated that the  additional work was not within the original XY scope of the contract but was within the current scope of the contract after adding Z as an out of scope supplemental agreement. What you currently have is two distinctly separate scopes of work together in one contract for administrative convenience. 

 Thus, whether or not the original scope of work contemplated adding Q has nothing to do with it,  from the information originally supplied.

So, I don’t understand if animal spirits is now indicating that the additional work is not within the scope of “X and Y” or “Z”, separately, but only when read as a whole “XYZ”.

If so, that doesn’t make any sense to me. XY is distinct from Z but being done concurrently or separately within one contract vehicle. Z has no relevance to the initial competition. 

You cant add Z to XY to rationalize that, when XYZ is looked at together, then Q will be considered within scope because it should have been anticipated by the competitors for XY.

Z wasn’t part of the original competition.

I apologize profusely if it seemed like I was saying earlier that, when XYZ are read together, Q could be considered within scope. 

Q would have to be within the scope of either XY or Z to be within scope of the “current contract”.

If it wasn’t within the scope of XY,  then it must be within the scope of  Z

I should have said that initially.

animalspirits said:

either the PWS explicitly forecasted the potentiality of additional changes of this type (thereby putting parties on notice that modifications of this type would be possible and in scope) or the totality of the circumstances is such that any reasonably informed party being familiar with this industry and the work set forth in the PWS could have reasonably foreseen and anticipated that changes of this type would be required over the course of the contract and that, had the contract been originally solicited as XYZQ instead of XYZ, it is unlikely that the field of competition would have changed or the apparent awardee would have changed (as compared to soliciting XYZ).

You've changed a lot of things here.  From this, it seems you are saying the original solicitation was for XYZ instead of XY.  This seems to negate the assertion that Q would be within scope of the modified contract XYZ but not the original contract XY.  I agree with ji, you need to get your facts straight and figure out what your real question is.

Scope analysis is highly fact-specific and case-by-case. The inquiry uses several factors and examines both the contract itself and the solicitation (scope of the contract versus scope of the competition, respectively).

Your scenario has no specifics.

This is a waste of time. Navel-gazing. 

The speculation in this comment thread will have no bearing on the actual scope analysis of any real-world situation this is based upon.

The "Government's analysis" is the wrong way to frame this issue. Who cares what the government says? If there is a protest, it will be the GAO's or Court of Federal Claim's scope analysis, not the government's.

The separation of XY and XYZ and the "assume this" nonsense is nonsense. The scope analysis can and will examine everything relevant. Nothing will be excluded because the protester or the government thinks that it should be excluded from examination.

This thread would be more interesting if it asked other trivializing questions like

Can God microwave a burrito so hot that He Himself cannot eat it? Was there ever nothing? Did something come from nothing? How many angels can fit on the head of a pin?

PepeTheFrog said:

Can God microwave a burrito so hot that He Himself cannot eat it?

Hat Tip to George Carlin, right?

here_2_help said:

Hat Tip to George Carlin, right?

PepeTheFrog thought it originated in an episode of The Simpson, Homer Simpson asking the devout Ned Flanders. But maybe they lifted it from Carlin?

For the peanut gallery: It's not a paradox if God exists outside of the cosmos as an infinite Creator not subject to limitations of time, matter, energy, or the laws of the cosmos.

It's only a "paradox" if god is a watchmaker within and subject to the laws of the cosmos. (So who made the watchmaker? Was there ever nothing?) The question assumes a materialist metaphysics. 

The OP assumes that a scope determination can or will be limited to what he wants it to be, for whatever reason, whether academic or real-life. In both cases, the questions betray something about the questioner.

Pepe, methinks you are being too hard on the original poster. I think that the OP originally asked whether a modification to add work (Q) has to be analyzed for in-scope/out of scope based on the scope of the original competitively awarded contract (XY) or can it be analyzed for in-scope/out of scope based on the scope of the current contract (XY&Z), which now contains work (Z) that was not within the scope (XY) of the original contract. 

They didn’t ask how to analyze in or out of scope only the contextual basis of the analysis.

The simple answer is that one must distinguish between the original scope (XY) and the scope (Z), added for administrative convenience after obtaining an exception to full and open competition. 

Q can be 1) within scope XY of the original contract or 2)within the scope Z of the separately added scope - or it might even be 3) within the scope of both the original competed contract work XY and the separately non-competitively added work Z.

Else,  it ain’t in the scope of the contract. 

However, adding scope Z didn’t change the scope of XY. Thus, XY & Z are still two distinct scopes.

PepeTheFrog said:

It's only a "paradox" if god is a watchmaker within and subject to the laws of the cosmos. (So who made the watchmaker? Was there ever nothing?) The question assumes a materialist metaphysics.

Hooray for the profound polliwog!

PepeTheFrog said:

PepeTheFrog thought it originated in an episode of The Simpson, Homer Simpson asking the devout Ned Flanders. But maybe they lifted it from Carlin?

https://quotefancy.com/quote/813665/George-Carlin-If-God-is-all-powerful-can-He-make-a-stone-so-big-that-He-Himself-can-t

joel hoffman said:

Pepe, methinks you are being too hard on the original poster. I think that the OP originally asked whether a modification to add work (Q) has to be analyzed for in-scope/out of scope based on the scope of the original competitively awarded contract (XY) or can it be analyzed for in-scope/out of scope based on the scope of the current contract (XY&Z), which now contains work (Z) that was not within the scope (XY) of the original contract. 

They didn’t ask how to analyze in or out of scope only the contextual basis of the analysis.

The simple answer is that one must distinguish between the original scope (XY) and the scope (Z), added for administrative convenience after obtaining an exception to full and open competition. 

Q can be 1) within scope XY of the original contract or 2)within the scope Z of the separately added scope - or it might even be 3) within the scope of both the original competed contract work XY and the separately non-competitively added work Z.

Else,  it ain’t in the scope of the contract. 

However, adding scope Z didn’t change the scope of XY. Thus, XY & Z are still two distinct scopes.

PepeTheFrog respectfully disagrees. Your reasoning shows a faulty understanding of the concept of "scope" and how a scope analysis works.

For example, you say "adding scope." That an imprecise phrase that confuses the discussion and spreads ignorance. You cannot "add scope" or "de-scope." If you could, you could subvert the Competition in Contracting Act whenever you want. You don't "add scope."

You can make changes to the contract (including additions) that may or may not be within the "scope of the contract" or "scope of the competition." Those changes are all subject to a scope analysis. 

If the concept of "scope" itself could be expanded to allow for more and varied work via modification, don't you think other potential competitors, who lost or who did not submit proposals for the original solicitation, would be upset about that? Shouldn't they be upset? Don't you see how they're left out of the game by your faulty understanding of scope?

You think you can just "stretch" the scope of the contract (or scope of the competition) to suit your needs, and that's where you incorrectly insert this phantom distinction between XY & Z. Read up on these concepts, especially "scope of the competition" (rather than "scope of the contract") and think about it more. You will agree with PepeTheFrog. 

joel hoffman said:

However, adding scope Z didn’t change the scope of XY. Thus, XY & Z are still two distinct scopes.

Two distinct scopes? For what purpose? You're falling into the same error as the OP.

If a protestor challenges the modification as being "out of scope," and therefore subject to competitive procedures for new work, then the scope analysis will include an examination of the contract, solicitation, modification(s), and even a signed JOFOC/J&A (even though the GAO/COFC will give it strong deference). Splitting XY and Z and Q is not relevant. Stating that XY is already "safe" from the analysis is not relevant. They will all be analyzed as part of the scope analysis.

[deleted another example]

On ‎4‎/‎8‎/‎2019 at 9:42 AM, PepeTheFrog said:

Can God microwave a burrito so hot that He Himself cannot eat it?

Stealing this.  Just FYI.

PepeTheFrog said:

PepeTheFrog respectfully disagrees. Your reasoning shows a faulty understanding of the concept of "scope" and how a scope analysis works.

For example, you say "adding scope." That an imprecise phrase that confuses the discussion and spreads ignorance. You cannot "add scope" or "de-scope." If you could, you could subvert the Competition in Contracting Act whenever you want. You don't "add scope."

You can make changes to the contract (including additions) that may or may not be within the "scope of the contract" or "scope of the competition." Those changes are all subject to a scope analysis. 

If the concept of "scope" itself could be expanded to allow for more and varied work via modification, don't you think other potential competitors, who lost or who did not submit proposals for the original solicitation, would be upset about that? Shouldn't they be upset? Don't you see how they're left out of the game by your faulty understanding of scope?

You think you can just "stretch" the scope of the contract (or scope of the competition) to suit your needs, and that's where you incorrectly insert this phantom distinction between XY & Z. Read up on these concepts, especially "scope of the competition" (rather than "scope of the contract") and think about it more. You will agree with PepeTheFrog. 

Two distinct scopes? For what purpose? You're falling into the same error as the OP.

If a protestor challenges the modification as being "out of scope," and therefore subject to competitive procedures for new work, then the scope analysis will include an examination of the contract, solicitation, modification(s), and even a signed JOFOC/J&A (even though the GAO/COFC will give it strong deference). Splitting XY and Z and Q is not relevant. Stating that XY is already "safe" from the analysis is not relevant. They will all be analyzed as part of the scope analysis.

[deleted another example]

Thank you Mr Contractor for the partially correct lesson in contracting with the government.  

I NEVER said that one can modify to contract to add work that is outside of the scope of work of the contract — ABSENT an exception to the requirements to provide full and open competition.  The exceptions and applicable procedures are discussed in FAR Part 6. 

I also did not explain HOW to determine if proposed additional work is in or out of the scope of the contract. The OP  originally only wanted to know the basis of the analysis.

Was it limited to comparing the scope of the newly proposed work (Q) with the scope of the originally competed contract (X and Y)?  

Or do you examine the current scope of the contract?  There are actually two separate scopes of work for the current contract - the originally competed and awarded scope of (X and Y) and a separate scope of (Z).  

Note that the government was able to justify awarding Z to the contractor performing (X plus Y) without full and open competition. The op The government could have awarded Z under a separate contract or could add it by an out of scope supplemental agreement to the originally competed contract for (X plus Y).

The latter was the avenue chosen to perform scope Z.  It was done for administrative convenience (various advantages involved). 

That doesn’t change the nature of  or expand the original scope of work ( X plus Y) .   

However, now - the government can make a change to the contract that is within the scope of (X plus Y) or can make a change that is within the scope of Z  without an exception to full and open competition. Why Z?  Because it is now part of the overall scope of the contract.  But it is a separate scope of work than the scope of (X plus Y) .

If the newly proposed scope of Q is not within the scope of (X plus Y)  OR within the scope of Z ,  then it can’t be added to the contract as a “change”. The government would have to justify an exception to full and open competition to be able to add it to the current contract via an out of scope supplemental agreement.  

Again - I’m not discussing HOW to determine if the work is in or out of scope. The OP didn’t ask that. The OP said - “Assume for sake of argument that the scope of Q is...within the scope of XYZ...” The OP didn’t ask HOW to analyze if or determine if the new Work (Q) is in or out of scope of the contract.

Having negotiated new fed government contracts, modifications, claims, terminations and having administered and having overseen administration of government contracts for 33 years, plus five years active duty USAF,  I believe that I know what I’m talking about in this thread. I tried to keep it as elementary as possible.

Pepe - “the scope of the competition” was, is and remains (X plus Y). 

The scope of the separate, non-competed work was, is and remains Z. In-scope changes to Z that are not changes to (X plus Y) are also allowed. . 

They are both within the scope of the contract but are separate scopes of work.

This changes everything! Stop the press!

PepeTheFrog didn't realize you had 33 years of experience, @joel hoffman, because you've never brought up your experience or anecdotes or personal memory or "war stories in contracting," ever, not even once, on this forum. If you have, in fact, mentioned that stuff scores of times, PepeTheFrog must have missed it or forgotten it. 

The reason you are one of the best voices in this forum has nothing to do with your ego. You are respected because of the content and quality of your posts. 

joel hoffman said:

However, now - the government can make a change to the contract that is within the scope of (X plus Y) or can make a change that is within the scope of Z  without an exception to full and open competition. Why Z?  Because it is now part of the overall scope of the contract.  But it is a separate scope of work than the scope of (X plus Y)

joel hoffman said:

There are actually two separate scopes of work for the current contract - the originally competed and awarded scope of (X and Y) and a separate scope of (Z).

This is incoherent.

Now you're saying "separate scope of work" in a discussion about the "overall scope of the contract." Mind your terms of art. 33 years, remember! One of the best voices on the forum!

(1) Tell us, what is a "scope of work"? Is that something like the "statement of work" or SOW?

Or is it something like the "scope of the contract"?

Or is it a sloppy combination of the two in your mind at worst and a sloppy usage of contracting terminology at best? 

You keep saying there is a separate "scope of work" (!!!)...do you mean a separate SOW or statement of work?

If you mean SOW or statement of work, why on Earth would you say "scope of work" unless you don't realize the error in doing so?

(2) Even if there are two statements of work, or three, or five, or ten, there is only one contract in this scenario, correct? That's what you said here:

joel hoffman said:

The government could have awarded Z under a separate contract or could add it by an out of scope supplemental agreement to the originally competed contract for (X plus Y).

The latter was the avenue chosen to perform scope Z.  It was done for administrative convenience (various advantages involved).

One contract, right? 

joel hoffman said:

Pepe - “the scope of the competition” was, is and remains (X plus Y). 

The scope of the separate, non-competed work was, is and remains Z. In-scope changes to Z that are not changes to (X plus Y) are also allowed. . 

They are both within the scope of the contract but are separate scopes of work.

One contract, correct? You can come up with X, Y, Z, Q, and anything else you'd like in your own mind, but there is just one contract!

You can't split up the single contract in your mind to avoid, protect, exclude, or ignore portions of the contract from the scope analysis. 

A scope analysis of a change to that one contract will not exclude any of the distinctions (X, Y, Z, X+Y, Q, original contract, modification) that you or the OP have invented in your minds.

You keep making the same error, over and over again. Making the same error for 33 years into the future will not rectify it.

Sorry you cant understand when an out of scope mod adds work to a contract for other work for administrative convenience (after getting approval for an exception to full an open competition),  Pepe.

PepeTheFrog said:

You can't split up the single contract in your mind to avoid, protect, exclude, or ignore portions of the contract from the scope analysis.

Do you have any GAO or COFC decisions to support this statement or is the authority for this 1 Pepe 1?

Also, how do you do a "scope of the competition" analysis when there was no competition?  

While you are on the one contract track, let's change the analysis a little from a scope of contract to application of the CAS to a contract.  The government awards a sole source contract with 2 CLINs to a large business.  One CLIN is for non-commercial items and has a price of $15M.  The other CLIN is for commercial items and has a value of $40M.  The contract contains FAR 52.212-4 and 52.212-5 which are applicable to the second CLIN.  Using your one contract analysis, is this a single CAS covered contract with a value in excess of $50M so that this contract is subject to full CAS coverage?

Retreadfed said:

Do you have any GAO or COFC decisions to support this statement or is the authority for this 1 Pepe 1?

Show PepeTheFrog a bid protest where they performed a scope analysis using only a portion of the contract, and did not read and interpret the contract as a whole. If you can perform the scope analysis using only a portion of the contract, it renders the concept of scope meaningless. If you could expand the scope of the contract and scope of the competition via modification, with no limits, what is the result? Will competitors and courts and GAO allow this? Does it square with CICA?

Retreadfed said:

Also, how do you do a "scope of the competition" analysis when there was no competition?

Not sure what you mean. Can you provide more detail?

Retreadfed said:

While you are on the one contract track, let's change the analysis a little from a scope of contract to application of the CAS to a contract.  The government awards a sole source contract with 2 CLINs to a large business.  One CLIN is for non-commercial items and has a price of $15M.  The other CLIN is for commercial items and has a value of $40M.  The contract contains FAR 52.212-4 and 52.212-5 which are applicable to the second CLIN.  Using your one contract analysis, is this a single CAS covered contract with a value in excess of $50M so that this contract is subject to full CAS coverage?

PepeTheFrog does not know the answer to this question about CAS applicability, but does know that in a challenge (protest) to the scope of a contract or scope of the competition, you cannot get away with shenanigans by pointing out different CLINs. The CLINs were awarded as part of the same contract. If you split those two CLINs into different contracts with different competitions, then it is relevant to discuss the two different contracts and their two different scope analyses.

PepeTheFrog said:

Show PepeTheFrog a bid protest where they performed a scope analysis using only a portion of the contract, and did not read and interpret the contract as a whole.

Pepe, you're better than that.  You made a definitive statement concerning the way to conduct a scope of competition analysis.  If you cannot back that up with some authoritative support, then we are only dealing with your opinion instead of what the GAO or COFC has stated is the applicable procedure in the fact situation we were given.  Maybe we all have to admit that this is an issue that has not been addressed specifically by the GAO or the COFC.  I don't know because I have not researched it.

As for the scope of the competition analysis, how would you do such an analysis if the contract was awarded as a sole source contract?

Finally, in regard to your comments concerning two contracts vs. one contract, let's change the scenario a little.  If we have one contract awarded competitively and another contract for something else awarded as a sole source contract, but they are merged into one contract.  The merged contract is  later modified to reflect changes in the portion that was awarded on a sole source basis.  Would the scope of the competition analysis apply to the entire merged contract or only that portion of the merged contract that relates to the sole source award?

PepeTheFrog said:

You can't split up the single contract in your mind to avoid, protect, exclude, or ignore portions of the contract from the scope analysis. 

A scope analysis of a change to that one contract will not exclude any of the distinctions (X, Y, Z, X+Y, Q, original contract, modification) that you or the OP have invented in your minds.

It is one contract. Every “part” has to be included in a scope analysis. Who said that anything is excluded, protected, avoided or ignored?????

Each significant aspect of Q has to be analyzed for scope determination. 

For analysis of whether Q is within the scope of the contract:

1. If Q is within scope of X plusY but not Z,  then Q is within scope of the contract. 

2.  If Q is within the scope of Z, but not X plus Y, then Q is within scope of the contract. 

3.  If some parts of Q are within the scope of X plus Y and the rest are within the scope of Z, then Q is within scope of the contract. 

4. If none of the above are true, then it looks like Q or parts of Q are out of scope. The government would have to justify an exception to full and open competition to sole source the out of scope Q or out of scope portion of Q  to the current contractor (unless the out of scope portion is minimal or otherwise inconsequential).

What did I avoid, exclude, ignore or protect in the above scope analysis? 

I did mention that one can’t take X plus Y plus Z together to develop an extended sense of the types of work that could be added, encountered, anticipated in the original X plus Y competition because Z was clearly out of the scope of that original competition.

But now that Z is part of the contract, changes within the scope of Z, even if totally unrelated to X and Y, are within the current contract scope,

I may have lost you there; if so, I’m sorry.

Pepe, a statement of work is just an administrative title for a section of an RFP or RFQ  in certain formats. One could consider the “scope of work” to be the boundaries of the nature, type and amount of work that is described or encompassed in a statement of work and in other parts of the contract. 

 If one adds a separate scope of work to a contract by out of scope modification, it might or might not be added to the original “statement of work “  section, if there is one. It might be added in several areas of the contract. 

In construction contracts,  separate sets of plans and specifications are usually added in the out of scope mod. There may well be no “statement of work”, e.g., when using the CSI Uniformat rather than the UCF format that is more suitable for services and supplies.

 Therefore, not all government contract formats include a “statement of work”.

However every contract has a scope. The contract scope may include more than one scope of work if separate work is added for administrative convenience. 

 Semantics...

On 4/5/2019 at 11:57 AM, animalspirits said:

Scenario: Contract is awarded for XY services. Government wanted to add Z, which was out of scope. Government prepared and issued adequate JOFOC. Current contract is now for XYZ services.

Question: Now Government is now attempting to add Q services to the contract. For the sake of argument, assume the following: Q services are within scope of XYZ contract, but they are out of scope of XY contract. When deciding whether a JOFOC is required to add Q to the contract, may the Government's analysis be based on the current iteration of the contract (i.e. XYZ contract, meaning that Q is in scope and a JOFOC isn't required)? Or must the Government's analysis be based on the original contract at award (i.e., XY contract, meaning that Q is out of scope and a JOFOC is required)? Regulations or cases supporting your position would be helpful. THANK YOU!

Z is a contract, correct?

joel hoffman said:

For analysis of whether Q is within the scope of the contract:

1. If Q is within scope of X plusY but not Z,  then Q is within scope of the contract. 

2.  If Q is within the scope of Z, but not X plus Y, then Q is within scope of the contract. 

3.  If some parts of Q are within the scope of X plus Y and the rest are within the scope of Z, then Q is within scope of the contract. 

4. If none of the above are true, then it looks like Q or parts of Q are out of scope. The government would have to justify an exception to full and open competition to sole source the out of scope Q or out of scope portion of Q  to the current contractor (unless the out of scope portion is minimal or otherwise inconsequential).

What did I avoid, exclude, ignore or protect in the above scope analysis?

Let’s say that XY covered electrical system repair services for a US Navy ship located at sea. Let’s say that Z services cover ferry services to transport sailors and goods to and from the ship. Now, let’s say that Q covers motor repairs on the ship.

If a motor repair contractor protested the issuance of the mod for Q services, do you think the GAO would look at the solicitation leading to the award of the electrical repair contract to determine if the motor repairs are in the scope of the electrical repair solicitation? Or, would GAO decline to review the scope of the competition leading to the award of the contract for XY services because the X services mod was issued?

napolik said:

Let’s say that XY covered electrical system repair services for a US Navy ship located at sea. Let’s say that Z services cover ferry services to transport sailors and goods to and from the ship. Now, let’s say that Q covers motor repairs on the ship.

If a motor repair contractor protested the issuance of the mod for Q services, do you think the GAO would look at the solicitation leading to the award of the electrical repair contract to determine if the motor repairs are in the scope of the electrical repair solicitation? Or, would GAO decline to review the scope of the competition leading to the award of the contract for XY services because the X services mod was issued?

In your last sentence, did you mean  the mod for “Z” instead of “X”?  Was that a typo? “X” was in the original scope of the contract.  Let’s assume that you meant “Z”. 

The GAO would look at the solicitation for the contract to see if motor repairs would fit within the scope of the contract for “electrical repairs”.  This concept is discussed in Administration of Government Contracts (my latest version is the Fourth Edition). 

I’m assuming too that the motors are electric motors. 

In the event that the contract was properly modified to add out of scope, work, the GAO would not be limited to only examining the scope of the original competition. After adding the new scope to the original contract, the government can modify such added work within that scope under the Changes* clause or other contract terms and conditions applicable to the previously added scope (*assume non-commercial).

 It appears that motor repairs are not within the scope of Z, so Z would not be relevant to motor repairs, regardless of how Z was added to the contract. 

Edit: I would like to note that when the government uses an exception to full and open competition to add scope to an existing contract, it doesn’t have to necessarily be done as a sole source action. Limited competition is preferred over sole source actions to the extent practicable. I don’t  know about a ship at sea . However, there may be several contractors already working at an installation among which the government could conduct a limited competition, then add the work to an existing contract or issue a new contract for that work.  I would challenge our subordinate offices to consider the feasibility of that option when they identified  the need for adding out of scope work to an existing contract, depending upon the circumstances.

Retreadfed said:

Pepe, you're better than that.  You made a definitive statement concerning the way to conduct a scope of competition analysis.  If you cannot back that up with some authoritative support, then we are only dealing with your opinion instead of what the GAO or COFC has stated is the applicable procedure in the fact situation we were given.  Maybe we all have to admit that this is an issue that has not been addressed specifically by the GAO or the COFC.  I don't know because I have not researched it.

/legacy/reg/7cba8298d733d05b.html

"In determining whether a modification triggers the competition requirements under CICA, we look to whether there is a material difference between the modified contract and the contract that was originally awarded"

"Evidence...is found by examining changes in the type of work, costs, and performance period between the contract as awarded and as modified"

"...consider whether the solicitation for the original contract adequately advised offerors of the potential for the types of changes found in the modification, and thus whether the modification would have materially changed the field of competition"

"Thus a broad original competition may validate a broader range of later modifications without further bid procedures"

Retreadfed said:

As for the scope of the competition analysis, how would you do such an analysis if the contract was awarded as a sole source contract?

PepeTheFrog thinks it will be similar to the above analysis, and other GAO cases, if a potential competitors butts in with a bid protest. PepeTheFrog doesn't have a direct quotation about this stance; it is intuited or deduced from the principles of how and especially why a scope analysis is performed.

Form versus substance. The government can execute many forms, like JOFOC/J&A,  or even naked modifications with no JOFOC/J&A or even government-produced scope determination, that can excuse any manner of anti-competitive practices. Those documents, actions, justifications, etc. will not avoid the substance of what the government is doing: circumventing competition (CICA) via sole-source awards of contracts (although cloaked as a modification).

If the government could get away with this...

...if scope of the competition analyses resulting from competitors/protestors could exclude, protect, avoid, or ignore certain parts of the contract / solicitation / modifications as @joel hoffman has argued, in great detail, repeatedly, and then somehow also stated that nothing is excluded, protected, avoided, or ignored in the scope analysis (???)

joel hoffman said:

It is one contract. Every “part” has to be included in a scope analysis. Who said that anything is excluded, protected, avoided or ignored?????

...Then the government could get around competition (CICA) forever by piling on sole-source modifications for increasingly remote and unrelated types of work.

At some point, PepeTheFrog thinks that the GAO or Court of Federal Claims would throw a flag on the field in response to a bid protest. If what PepeTheFrog thinks is wrong, then it's "turtles all the way down" and the government can supply an endless train of sole-source modifications for unrelated work using JOFOC/J&A and nobody can do anything about it.

In one way, PepeTheFrog is approaching this from a reductio ad absurdum perspective.

Interesting questions for @joel hoffman:

(1) Is there any limit to the number and type of sole-source modifications, even with JOFOC/J&A, that can be added to a contract? Can an original competed contract for electrical repairs for a ship be modified, each time with a JOFOC/J&A, for air conditioning, pigeon delivery, tiger training, pistol supplies, ammunition crates, research and development on measles, nuclear bomb testing, and fifty other things down the road? Is that a possibility as long as the JOFOC/J&A is there?

(2) Will the GAO or Court of Federal Claims ever "strike down" a JOFOC/J&A (such as one attached as part of a sole-source modification)? Like when the dazzling software company Palantir challenged the government using its inferior, in-house software (with a JOFOC/J&A) instead of Palantir's superior software?

joel hoffman said:

Pepe, a statement of work is just an administrative title for a section of an RFP or RFQ  in certain formats. One could consider the “scope of work” to be the boundaries of the nature, type and amount of work that is described or encompassed in a statement of work and in other parts of the contract. 

 If one adds a separate scope of work to a contract by out of scope modification, it might or might not be added to the original “statement of work “  section, if there is one. It might be added in several areas of the contract. 

In construction contracts,  separate sets of plans and specifications are usually added in the out of scope mod. There may well be no “statement of work”, e.g., when using the CSI Uniformat rather than the UCF format that is more suitable for services and supplies.

 Therefore, not all government contract formats include a “statement of work”.

However every contract has a scope. The contract scope may include more than one scope of work if separate work is added for administrative convenience. 

 Semantics...

So for @joel hoffman the scope of the contract refers to the "boundaries of the nature, type and amount of work that is described or encompassed" in the entire contract. The scope of work refers to the "boundaries of the nature, type and amount of work that is described or encompassed in a statement of work and in other parts of the contract." Also, "The contract scope may include more than one scope of work if separate work is added for administrative convenience." "However every contract has a scope. The contract scope may include more than one scope of work..."

Yes, semantics. PepeTheFrog does not like your use or understanding of the term "scope of work." PepeTheFrog thinks it is sloppy and confuses any discussion of "scope of the contract" and "scope of the competition."  

(3) Final question for @joel hoffman, using his term and understanding of "scope of work."

If you add ten different "scopes of work" via ten different modifications to a single contract, is the "scope of the competition" ever changed by any or all of the ten different modifications?

PepeTheFrog said:

f you add ten different "scopes of work" via ten different modifications to a single contract, is the "scope of the competition" ever changed by any or all of the ten different modifications?

Who knows? It would probably be a pretty piss poor organization that would add 10 out of scope modifications to a contract.

 If someone protested the addition of out of scope work to a contract, I think that the GAO may, if aware of the situation, review the totality of the contract as modified. 

I did not write the rules for FAR Part 6 for exceptions to full and open competition.

Edit: I’m sorry but I can’t help it if you don’t agree that the government can issue in-scope changes  to work that was previously added to a contract by out of scope supplemental agreement, assuming that the government properly used an exception to full and open competition to add the out of scope work to the contract. The FAR implements the Statutory exceptions. 

As for terms, please read Administration of Government Contracts in the discussion of in-scope vs. out of scope work. You will see discussion of “scope of the competition”, “scope of the contract” as well as scope of the work being added or changed.  😊

@joel hoffman PepeTheFrog appreciates your answers and good faith discussion, thank you.

On 4/5/2019 at 1:57 PM, animalspirits said:

Regulations or cases supporting your position would be helpful. THANK YOU!

Animal, do you have access to a recent edition of Nash and Cibinic’s Administration of Government Contracts? 

There is good discussion about inscope vs out of scope determinations from the perspective of both the initial competition (protestable?) and from the government/contractor perspective (is it a change under the changes clause?) . There are case law citations. However, none of them specifically involve a situation where the contract has already been modified to add separate work and where the work in question might or might not be within the original scope of the contract (as competed) or the separately added scope. 

The book also discusses numerous facets of the actual in-scope out of scope examination and determination. 

It should be common sense that, when a contract includes separate work that was added after the competition, then one must compare the scope of the proposed work to be added with both the scope of the competition and the added, separate (scope of) work for in-scope/out of scope determination. 

Of course - if it is out of scope of both, then the government can’t legally add it ABSENT a properly approved justifiable exception from full and open competition. 

Does all that make sense? 

EDIT: some forum readers may be interested and/or surprised at some of the referenced cases and where GAO, Boards and Courts have determined an action to be in or out-of-scope actions. Some subjects have been discussed in or are related  to various Forum threads .

Joel Hoffman, your summarizing post dated Thursday 7:09pm is extremely interesting to me, and very clear to understand. I see logical merit to this way of considering the situation; thank you! If anyone is able to point me to any cases that discuss this concept further (how XY should be considered a separate unit from Z, not a unitary XYZ), please post them; I would like to read more on this topic.

No Joel, I don’t have access to a recent edition of Nash and Cibinic’s Administration of Government Contracts. I will seek it out.

To address another commenter’s question about why I’m being so vague with the facts . . . I’m tasked with reviewing many modifications each year, including commercial and noncommercial, including some where prior modifications were supported by JOFOCs but now they are looking to add more work that the CO claims is within scope. I’m just trying to apply the right framework to my analysis, and I very much appreciate all the time that posters have given to this topic. My decision to include few facts in my original question is based on my need to find the right framework for reviewing many modifications with many different fact patterns.

One post a while back asked me, if I’m not using the Changes clause as the basis of authority, what am I using? While many/most of the modifications that I’m reviewing do involve changes that fall within the list of enumerated permissible change types in the Changes clause, it’s my understanding (supported by Vern Edwards’ comment dated June 22, 2011 here) that in-scope changes are NOT LIMITED TO only those enumerated change types in the Changes clause. The Changes clause provides certain UNILATERAL rights to the Government. It’s my understanding that, for a bilateral modification to a contract that had not previously been modified with a JOFOC, my scope analysis is based on a totality of the circumstances, considering whether the changes were (or should have been) fairly and reasonably contemplated by potential offerors at the time that the contract was solicited and awarded, whether it is likely that the field of competition (i.e., the number and identities of offerors) would have changed if the changes had been included in the original solicitation, and whether it is likely that the contract would have been awarded to a different awardee if the changes had been included in the original solicitation. Therefore, there may be instances where a change may be considered in-scope even if it falls outside of the enumerated list of permissible changes in a Changes clause included in the contract, so long as it meets the totality of the circumstances test identified in the previous sentence.

For what it’s worth, if no one has anything else to add, I feel as if my question was asked and answered. Thank you all!

Thanks for the background.

As a reviewer, I hope your agency culture allows you to give every benefit of the doubt to the contracting officer, whose job it is to make scope decisions.  I am okay with honest reviewing, but we have far too much second-guessing going on.

ji20874 said:

Thanks for the background.

As a reviewer, I hope your agency culture allows you to give every benefit of the doubt to the contracting officer, whose job it is to make scope decisions.  I am okay with honest reviewing, but we have far too much second-guessing going on.

Finally the comment I appreciate the most in this thread.   

animalspirits said:

If anyone is able to point me to any cases that discuss this concept further

The best approach - moving from "I think" to "factual reference" with regard to all the venues that can offer insight - GAO, BCA and the courts.

On 4/13/2019 at 8:39 AM, C Culham said:

Finally the comment I appreciate the most in this thread.   

The best approach - moving from "I think" to "factual reference" with regard to all the venues that can offer insight - GAO, BCA and the courts.

A KO who doesn’t seek the advice of legal and other advisors on the acquisition team for non-routine issues or actions is a fool. The precious FAR encourages and requires it , as necessary.

As for applicable caselaw and GAO references, Administration of Government Contracts by Nash and Cibinic has detailed discussion on  scope of the contract and scope of the competition, replete with references.

It just doesn’t cover the situation where determining whether adding proposed work is in or out scope of a contract when out of scope supplemental agreement has previously added a separate scope to the contract in question. 

Then, the TEAM needs to use critical thinking and inferential thinking skills. There isn’t always a magic cookbook for 1102’s to look up an answer in. 

The best general book references that I’ve invested in are Administration of Government Contracts and Formation of Government Contracts, and have read some of the other related books by Profs Ralph Nash and John Cibinic or latest collaborators (Cibinic died a few years ago). I don’t have ready access to the legal pubs and on-line legal library resources or monthly caselaw subscriptions anymore in retirement.  Our legal library was a fabulous resource. One can certainly browse the internet for the various Boards, GAO and Federal Court Decisions . 

If  you live or work  near a Federal Courthouse, they used to have decent law libraries as well. Ours in Mobile was next door to our offices. 

Of course, I also had access to our legal office with some great and some mediocre attorneys. We had a law library with hard copy references and the lawyers have on-line access and subscriptions to the legal references. 

Nash and Cibinic Report (with Vern Edwards) is, of course, a great reference.