Link: GAO Opinion
Agencies: Department of the Army
Disposition: Protest Denied.
Keywords: Contract modification
General Counsel, P.C. Highlight: Modification of an existing contract is not normally protestable at GAO except where the modification is beyond the scope of the original contract, since, absent a valid sole-source justification, the work covered by the modification would have been the subject of a new competitive procurement.
After the Department of the Army issued a modification to one of its contracts to ANHAM FZCO, LLC, Overseas Lease Group, Inc. (OLG) protested, claiming that the modification is beyond the scope of the contract and amounted to an improper sole-source award. The initial request for proposals (RFP) sought proposals for a single award task-order indefinite-delivery/indefinite-quantity (ID/IQ) contract to provide vehicle leases for certain types of armored and non-tactical vehicles in Afghanistan. The contract was then awarded to ANHAM in May of 2009. Two months later, the Army issued a no-cost modification to the contract, which added additional unarmored vehicles to the list of vehicles already included in the original contract. OLG protested this modification on the basis that the original contract was limited to armored vehicles and that by adding unarmored vehicles the Army had exceeded the scope of the contract and created an improper sole-source award.
The Army countered this claim by stating that the original solicitation included unarmored vehicles in its scope when it made reference to “non-tactical vehicles,” asserting that in military parlance the two terms were synonymous.
GAO typically does not adjudicate protests surrounding contract modifications, since they generally revolve around contract administration, however an exception to that rule can be found when a protestor alleges that a modification is beyond the scope of the original contract and should have been subject to the statutory requirements for competition.
In this protest, GAO determined that the purpose and nature of the original contract was not sufficiently changed by the modification to warrant sustaining the protest. Even though the original RFP did not specifically mention unarmored vehicles, GAO found that the contract was sufficiently clear in including unarmored vehicles within its scope. Because the RFP specifically enumerated non-tactical vehicles and “up-armored” vehicles, GAO established that the RFP’s intent was to contrast the two types and that non-tactical was to include unarmored vehicles. In addition, the list of vehicles provided in the original contract, while not including any unarmored vehicles, was made clear by the Army that it was non all-inclusive and therefore left room for modifications in the future to include unarmored vehicles. As such, OLS’s protest was denied.