“In Scope” vs. “Out of Scope” Modifications: GAO Explains The Difference

An agency may modify a contract without running afoul of the Competition in Contracting Act, so long as the the modification is deemed “in scope.” An “out of scope” modification, on the other hand, is improper–and may be protested at GAO.

In a recent bid protest decision, GAO denied a protest challenging an agency’s modification of a contract where the modification was within scope and of a nature that competitors could have reasonably anticipated at the time of award. In its decision, GAO explained the difference between an in scope and out of scope modification, including the factors GAO will use to determine whether the modification is permissible.

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GAO: Out-Of-Scope Delivery Order Modification Was Improper

An agency may not procure new services under an existing GSA Schedule delivery order if the new services exceed scope of the original delivery order.

In a recent decision, Onix Networking Corp., B-411841 (Nov. 9, 2015), the GAO sustained a protest where the agency acquired a new type of software by modifying an existing delivery order for software license extensions because the acquisition exceeded the scope of the initial delivery order. According to the GAO, the out-of-scope modification amounted to an improper sole source contract.

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Government’s Engineers Couldn’t Modify Contract, Says ASBCA

A construction contractor was unable to recover the costs of performing changed work allegedly ordered by the government’s project engineers because the engineers did not have authority to modify the contract.

As demonstrated in a recent Armed Services Board of Contract Appeals decision, only a contracting officer or the contracting officer’s designated representatives may modify a contract, and a contractor bears the risk of non-payment by performing changed work directed by an unauthorized government employee.

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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.

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