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  • Question

    Can the contracting officer lower the specific qualifications for contractor personnel from the higher specific qualifications advertised in the solicitation and upon which was a critical technical factor in award selection?


    Answer

    The following response is based solely on the question and background information provided. As we do not have all of the facts particular to your contract, program, and situation, we highly recommend you consult your Contracting Officer and Legal Office for guidance.
     
    For agency protests, reference FAR 33.103 (e): "Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier."
     
    GAO protests have similar rules. 4 CFR Part 21 (GAO Bid Protest Regulations), section 21.2(a) (2) says, "Protests...shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier)."
     
    If the basis for protest does not occur until after award, the protest period is not "past" until 10 days later. There are well-known cases where protests have been filed years after the award date because the basis of protest did not become known until then. 
     
    Courts apply a test to determine whether a contemplated contract change is within the scope of the contract when such change could be subject to a third-party protest. Courts generally ask whether the change would have been within the reasonable contemplation of the field of competition of the original procurement. If not, the change may be deemed out of scope. Unless a J&A is obtained, an out of scope change requires a new procurement. Note that scope determinations are complicated and are the subject of significant case law. You should consult your contracting officer and legal counsel whenever scope determinations are being considered. 
     

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