GAO Bid Protest Jurisdiction And Contract Modifications

The GAO’s bid protest jurisdiction typically does not extend to reviews of contract modifications.

In a recent GAO bid protest decision, Cornische Aviation & Maintenance, LTD, B-405013.4 (Jan. 25, 2013), the GAO held that the protester’s allegations regarding a contract modification were not within the scope of the GAO’s bid protest function.  The Cornische Aviation GAO bid protest decision demonstrates the GAO’s limited ability (or willingness, depending on one’s point of view) to decide bid protests involving contract modifications.

The Cornische Aviation GAO bid protest decision involved an ongoing Army contract held by Science and Engineering Services, Inc., or SES.  The contract was a single-award IDIQ and called for SES to provide a broad range of aircraft repair, modification, overhaul and related tasks.

In September 2012, the Army issued a modification to a delivery order under the contract.  The modification directed SES to overhaul and modify five Mi-17 helicopters and provide technical support and training to the Afghanistan Air Force.

Cornische Aviation & Maintenance, LTD, filed a GAO bid protest challenging the modification.  Cornische alleged that the modification was outside the scope of the underlying IDIQ contract.  Cornische also contended that the Army should not have issued the modification because SES was incapable of performing the work.

Addressing Cornische’s first argument, the GAO explained that “[o]nce a contract is awarded, our Office generally will not consider protests against modifications to that contract, because such matters are related to contract administration and are beyond the scope of our bid protest function.”

However, the GAO stated, an exception to the general rule exists “where, as here, a protester alleges that a contract modification is beyond the scope of the original contract, because, absent a valid sole-source determination, the work covered by the modification would be subject to the statutory requirements for competition.”  The GAO continued, “[i]n 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.”

In this case, the GAO held that although Cornische’s argument regarding the scope of the modification fell within the GAO’s bid protest jurisdiction, the modification was “clearly within the scope” of the underlying IDIQ contract.  The GAO denied this portion of Cornische’s protest.

The GAO refused to consider Cornische’s argument that SES was incapable of performing the modification.  The GAO wrote, “[w]hether a contractor performs in accordance with the requirements of a solicitation or resultant contract is a matter of contract administration that we do not review as part of our bid protest function.”  The GAO dismissed Cornische’s second argument.

The Cornische Aviation bid protest decision illustrates the strict limits on the GAO’s review of contract modifications.  Unless the protester alleges that the modification is outside the scope of the underlying contract, the GAO will likely consider the protest to fall outside of its bid protest jurisdiction.

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