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    Existing IDIQ holders were already provided with all the Labor Categories in the solicitation of the base contract and there were few vendors that submitted proposals and only two were found technically acceptable based. Now three years later PCO is directed to add additional labor categories to the existing IDIQ at the request of one the IDIQ holder. Wouldn't it violate Fair Opportunity to do it now? My thinking is based on the fact that if the solicitation was incomplete or inaccurate then and now we give this vendor extra opportunity, in reality he now has the opportunity to re-submit his proposal with more labor categories that he didn't include in his initial proposal. If the other potential contractors who responded to the solicitation should get another opportunity toad the additional labor categories than they could possibly have been technically acceptable in the technical evaluation process for the base contract award? This current IDIQ violates CICA and if we mod the contract to add additional labor categories than it may violate fair opportunity? Also that same IDIQ awardee wants to be sub-contractor on his IDIQ or to the other IDIQ awardee that would mean he would be sub-ktr to his one and only competitor, how is this possible?


    Answer

    With two awardees, the changes to labor rate categories must be done in both contracts.
     
    Whether additional labor rates can be added to an existing contract is a "within scope" judgment for the contracting officer to make.

    GAO has viewed any analysis of this issue as one to be determined by examining whether the alteration is within the scope of the competition which was originally conducted. Ordinarily, a modification falls within the scope of the procurement provided that it is of a nature which potential offerors would have reasonably anticipated under the changes clause. To determine what potential offerors would have reasonably expected, consideration should be given to the procurement format used, the history of the present and related past procurements, and the nature of the supplies or services sought. A variety of factors may be pertinent, including: whether the requirement was appropriate initially for an advertised or negotiated procurement; whether a standard off-the-shelf or similar item is sought; or to whether, e.g., the contract is one for research and development, suggesting that broad changes might be expected because the Government’s requirements are at best indefinite. 


    American Air Filter Co., DLA Request for Reconsideration, B-188408, June 19, 1978, 78-1 CPD ¶ 443, at 9-10. 

     
    In more recent years, however, GAO has appeared to defer to an agency's determination that a modification is within the scope of a particular contract. In general, a modification is considered to be outside the scope of an existing contract when there is a "material difference" between the contract as modified and the contract as it existed before the modification. In Access Research Corp., GAO noted that: "Evidence of a material difference between the modification and the original contract is found by examining any changes in the type of work, performance period and costs between the contracts as awarded and as modified."


    So the question for your contracting officer to judge is whether the proposed new labor rates are related to the current (already in the contract) labor rates- or are way out in left field. In other words, if the current labor rates include a category for "logistician" or "electrical engineer" and you want to add a "senior logistician" and/or a "senior electrical engineer", I would call that within scope. If you wanted to add a "nuclear radiation specialist" unrelated to any existing labor category, I would call that out of scope and could not be legally added to the contract via modification.

    As always, be sure to consult your legal and contracting officer.

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