After award, the Program Manager indicated that there was a need for extra work and therefore an extra FTE. We conducted a modification to add an additional FTE below the threshold for legal review. Now we are trying to conduct a modification for the outyears and legal has indicated that the action is not legally sufficient due to the FFP scenario. Legal has advised us to work on getting the PWS legally sufficient and advised against a J&A. Do you have experience with this or advice. Thank You.
This response is based on the information provided. We do not know the details of the acquisition or the decisions that led to the modification to apparently increase the scope of the original effort immediately after a fair opportunities award. Case law in general does not support that course of action. The argument is that had all competitors been aware of the additional work, they could have priced it and it could have led to a different outcome. It could also appear that we are not being transparent in the acquisition process. We are not implying that there was any intent on the part of your team to intentionally circumvent the acquisition/selection process, we are simply explaining the rationale behind the case law.
Open full Question Details
At the point you identified a need to add an extra FTE it would likely have been appropriate to request a J&A. We do not have the legal opinion so we cannot comment on why a J&A is not prudent or what legal believes would be necessary to the PWS to a state of legal sufficiency
Our suggestion, from the limited information, would be to discuss with legal what about the PWS is legally suspect and then devise an approach to remedy the situation. Our best guess is that the PWS may not have been amended to include the FTE when you modified the task order and that needs to be addressed.