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  • Question

    Is the proposed modification within the scope of the contract and does it violate CICA since it is a substantial portion of the total contract?


    Answer

    Our first concern is using FY 21 money for an FY 22 requirement.  You haven't identified the type of funding (OMA, MILCON, or some other).  If the work was a proper requirement of FY 22, FY 22 funds should be used.  If we do have a legitimate requirement for work in a given period, but create an option because we do not have sufficient funds, we are to exercise the option at the same time if the funds are available and the work is a requirement of that period.

    We are unclear about the eight month period.  Did the COE not expect work to be performed from 1 JAN 22 to 10 SEP 22?  Was industry put on notice that there could be changes to performance/performance periods based on availability of funds?

    On its face, this would not necessarily be a CICA violation based on dollar value.  Nor is it automatically an issue to adjust performance, as change is routinely anticipated by the nature of USACE work.

    There is nothing inherently wrong with the approach.  If the PWS requirements were affected by this approach, it needs to be amended to reflect the updated understanding of the parties along with any other terms and conditions of the contract.

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