Can the contract be modified to add these additive bid items to the contract after award? The FAR appears silent on this point...
Based on the information provided, I do not see an issue with the decision to award additional items to the construction project after award when those items were originally included on the "additive items list" in the solicitation. However, I also offer the following comments and recommendations:
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1) The clause DFARS 252.236-7007 is a clause used for pre-award decisions and establishes the rules used to determine the low bidder and make the award. It is not an authority to issue a modification to add work after award. You will have to determine an appropriate modification authority for the additional work.
2) You should determine that none of the rules the government established in the clause for determining the low bidder are violated by adding the additional work after award. At this point, the decision primarily involves DFARS 252.236-7007(b)(3), The low offeror's price for the combination to be awarded is less than the price offered by any other responsive, responsible offeror.
3) A "within scope" determine with have to be made to ensure there are no Competition in Contracting Act violations. Using FAR 5.001 -- Definition, should also help in your decision.
“Contract action,” as used in this part, means an action resulting in a contract, as defined in Subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.
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