Although the contractor is correct, is there any information or guidance available that allows for some amount of flexibility in the scope of a BAA after it is awarded? Due to the nature of research and development, customers require some flexibility to attain the information they want from the research effort to ensure it is going the direction they desire. Is contracting allowed to mod the contract to broaden the scope of a BAA requirement in an effort to maximize the research efforts of the contractor? Please provide regs and guidance of what is possible.
The degree to which you can modify a contract awarded in response to a BAA is determined by the clauses in that contract.
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The BAA is not the award document but a special procedure used to solicit, evaluate and acquire basic and applied research, experiments, scientific study and very limited development. FAR 35.016. Their purpose is to advance state-of-the-arts or increase knowledge and understanding rather than focus on a specific system or solution. FAR 35.016. By regulation, R&D programs advance scientific and technical knowledge and direct their effort toward work which cannot be precisely described in advance. Fundamentally, contracting for R&D “shall be used to encourage the best scientific and industrial sources…and must provide an environment in which the work can be pursued with reasonable flexibility and minimum administrative burden.” FAR section 35.002.
Therefore, cost type contracts are typically awarded in response to a BAA and as such they should contain appropriate clauses to make in-scope changes. Further, grants or cooperative agreements, rather than contracts, should be awarded in response to a BAA when the principal purpose of the transaction is to stimulate or support R&D that is not for the direct benefit of the Federal Government. FAR section 35.003 and see FAR subsection 35.006(a) for the contract types appropriate for acquiring R&D.
In addition, the statement of work for R&D contracts “should allow contractors freedom to exercise innovation and creativity. Work statements must be individually tailored by technical and contracting personnel to attain the desired degree of flexibility for contractor creativity and the objectives of the R&D.” FAR Section 35.005.
Since BAAs arguably result in the MOST FLEXIBLE and LEAST RESTRICTIVE relationships with the government, your problem is irregular. Perhaps the BAA did not fully consider the guidance in FAR section 35.005 Work Statements and FAR section 35.007 Evaluation Criteria when soliciting for proposals. Or, maybe the resultant contracts were written more restrictive than needed for an R&D effort. In any event, the BAA solicitation no longer governs the acquisition—the clauses in each of the contracts or agreements awarded in response to the BAA will determine their administration and the degree to which they can be modified.