In my opinion, the construction phase services should have been included in the original task order as an option with a defined scope and negotiated price in order to award it via modification. Also, the construction phase services could have been awarded in the task order with a defined scope, negotiated and funded up front. Construction phase services could also be awarded as a separate task order when they are actually needed. There should be a defined period of performance in each task order as well. Am I missing something? Where can I read more about construction phase services and how they are to be procured? Thanks for your assistance.
Should the construction phase services have been defined in the A&E statement of work? YES.
Should the construction phase services have been separately negotiated and included as an option contract line item in the original award? YES
Is the customer request to add the services within scope? Probably. Scope is legal term with no definition in FAR Part 2. To determine whether a contemplated change is within scope, courts typically apply one of two tests, depending on whether the change is being challenged by a party to the contract or by a third-party protest. In the former, a change is generally considered within scope if it would have been fairly and reasonably contemplated by the contracting parties at the time of contract award. In the latter, a change is generally considered within scope if it would have been fairly and reasonably contemplated by the field of the original competition. Courts consider whether the original solicitation addressed the possibility of the change as a factor that favors an in-scope determination. Here, it appears the original solicitation did warn potential competitors of the potential for a change to add construction services.
FAR 36.601-4(a)(3) is one of the few locations in the FAR/DFARS that construction phase services are referenced. The services can included but are not limited to construction management, inspection/observation, shop drawing/material submittal review, and consultation. If you want to read more, just Google the term.
This scenario change is complicated by the fact that it is for A&E services. A&E services are solicited and awarded IAW FAR 36.6 and the Brooks Act with the "most highly qualified contractor(s)" selected to perform the A&E services. As such, the evaluation board should have considered construction phase services when they recommended the contractor as the "most highly qualified" since the services were referenced (briefly) in the statement of work. This would also lend support to an in-scope determination. However, scope determinations are complicated and subject to significant case law. I suggest you consult your legal counsel whenever making scope determinations, especially one for A&E services.