| Matter of: | Atlantic Coast Contracting, Inc |
| File: | B-288969.4 |
| Date: | June 21, 2002 |
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Hugh R. Overholt, Esq., Jennifer L. Bowman, Esq., and Albert R. Bell, Jr., Esq., Ward and Smith, for the protester.
Reginald M. Jones, Esq., and Karl F. Dix, Jr.,
Esq., Smith, Currie & Hancock, for Mark Dunning Industries, an intervenor.
Captain Ronald D. Sullivan, Department of the Army, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Modification to contract for refuse collection and disposal services, which only
shifted the responsibility of the contractor to perform front-end industrial
refuse collection with its own vehicles and containers instead of with
government-furnished vehicles and containers, did not exceed the scope of the
original contract because the fundamental nature or purpose of the contract
remained unchanged.
DECISION
Atlantic Coast Contracting, Inc. protests the Department of the Army's
modification to contract No. DABT01-01-C-0006, for refuse collection and
disposal services at Fort Rucker, Alabama, with Mark Dunning Industries.
The modification is for Dunning to perform the requirement for front-end
industrial refuse collection under the contract with its own trucks, instead of
with government-furnished vehicles. Atlantic contends that the
modification exceeded the scope of the contract and resulted in an improper
sole-source award.
We deny the protest.
The refuse collection and disposal services contract, competitively solicited
under invitation for bids (IFB) No. DABT01-01-B-0005, and awarded to Dunning on
September 14, 2001, was to obtain solid waste collection and disposal services
at Fort Rucker Alabama, for a base year with four yearly options. The
total contract award price was $2,819,990. Atlantic did not submit a bid
under the IFB. Due to two unrelated protests, performance of the contract
was delayed until March 1, 2002. Since July 2001, Atlantic had performed
solid waste collection and disposal services at Fort Rucker under monthly
purchase orders to cover these services until this contract went into effect.
The contract specifications required the contractor to furnish all labor,
supervision, materials, supplies, and equipment necessary to collect and dispose
of solid wastes resulting from residential activities, as specified by the
contract. Contract § C.1.b. The contract also provided that
“[t]he Contractor shall provide collection of solid wastes from residential,
commercial, industrial, and community areas as shown in Attachment J-2.”
Id. § C.5. Attachment J-2 identified the location and frequency of
pick-up of refuse involving the various refuse collection services. The
contractor was also required to collect “all types of commercial and
industrial solid wastes” at locations and frequencies set forth in paragraphs
1 through 3 of Attachment J-2, and that “[u]nscheduled (on-call) collections
and other nonscheduled services are included in the indefinite quantity portion
of the contract.” Id. § C.5.c.(3)(B). Regarding the
indefinite collection requirements, the contract stated the following:
f. INDEFINITE COLLECTION SERVICE REQUIREMENT. The Contractor
shall provide two (2) refuse vehicle operators to perform the tasks listed
below.
(1) Landfill. The Contractor shall transport all refuse to [Alabama
Department of Environmental Management] approved Subtitle “D” landfill
designated by the [contracting officer].
(2) Vehicle. The Contractor shall use Government furnished
front‑loading refuse collection vehicles, which are specifically designed
for refuse collection and are compatible with Government furnished 8 cubic-yard
refuse containers. The Contractor shall be provided two (2) Government
vehicles to be utilized for this service.
(A) The Government will provide all fuel, maintenance and any
required repair work to the two (2) Government furnished
vehicles.
(3) Refuse Containers. The Government will furnish all refuse
containers covered under this section.
. . . .
g. INDEFINITE COLLECTION SERVICE SCHEDULED TASKS. The
Contractor shall perform the tasks below on a recurring or scheduled basis.
A summary of scheduled task requirements is provided in Attachment J-5.
(1) Refuse Collection. Refuse shall be collected at regularly
scheduled intervals as specified herein. . . . Refuse shall be collected
using a Government furnished front-loading garbage truck that lifts the dumpster
over the truck cab and empties it into a hopper behind the cab where the refuse
is compacted.
Id. § C.5.[1] Attachment J-5 lists the locations for
the indefinite collection service scheduled task.
In January 2002, the Army decided that furnishing government-owned vehicles to
the refuse collection contractor to perform this service was not practical.
Initially, the Army had included the requirement to have the contractor furnish
drivers and perform this service only until the agency could outsource the
requirement under a commercial activities contract, since government personnel
traditionally had performed the service. See Contracting Officer's
Statement, Tab H2, at 1-2. However, Atlantic advised the Army during the
course of its interim contract (in October 2001) that the two government-owned
vehicles were not in working order. Thus, the Army added the
responsibility of providing the trucks to Atlantic's purchase order at an
additional cost of $19,500 per month. The Army then decided that it might
be more feasible to have Dunning provide both the drivers and the trucks, and in
January 2002, solicited a proposal from Dunning, which also included providing
new containers because the existing containers were damaged. Id. at
2-3.
On March 15, the Army issued modification No. P00002 to Dunning's contract to
add the requirement to provide trucks and containers under Item No. 0003AD.
This increased the unit cost for the item from $11,399 to $22,467.25--this was
$3,012.75 less than Atlantic's interim contract for the services (which did
include the cost of supplying the containers). Id. This
portion of this contract modification to Dunning's contract represents a
$603,220 increase in the total contract price for the remaining 4 years and 6 ˝
months of Dunning's contract term.[2] On that same date,
Atlantic protested the modification as being outside the scope of the contract.
Once a contract is awarded, our Office will generally not consider protests
against modifications to that contract, because such matters are related to
contract administration and are beyond the scope of our bid protest function.
4 C.F.R. § 21.5(a) (2002); Stoehner Sec. Servs., Inc., B-248077.3,
Oct. 27, 1992, 92-2 CPD ¶ 285 at 4. The exception to this general rule is
where, as here, a protester alleges that a contract modification is beyond the
scope of the original contract, because, absent a valid sole-source
determination, the work covered by the modification would otherwise be subject
to the statutory requirements for competition. Neil R. Gross & Co.,
Inc., B-237434, Feb. 23, 1990, 90-1 CPD ¶ 212 at 2, aff'd, Department
of Labor--- Recon., B-237434.2, May 22, 1990, 90-1 CPD ¶ 491.
In determining whether a modification triggers the competition requirements in
the Competition in Contracting Act of 1984, 10 U.S.C. § 2304(a)(1)(A) (2000),
we look to whether there is a material difference between the modified contract
and the contract that was originally awarded. Evidence of a material
difference between the modification and the original contract is found by
examining any changes in the type of work, performance period and costs between
the contract as awarded and as modified. The question for our review is
whether the original nature and purpose of the contract is so substantially
changed by the modification that the original and modified contract would be
essentially different and the field of competition materially changed. Engineering
& Professional Servs., Inc., B-289331, Jan. 28, 2002, 2002 CPD ¶ 24 at
4.
Here, the Army's modification did not make any changes to the original nature
and purpose of the contract. First, the front-loading refuse collection
service is but one of multiple refuse collection services to be performed under
the contract, the bulk of which were to be performed using the contractor's
trucks. Contract § C.4. Moreover, the contract specifically
included as one of the multiple line items the requirement that the contractor
would perform the very front-loading refuse collection services that were the
subject of this modification, albeit with government furnished vehicles.[3]
As noted, the decision to modify the requirement to have the contractor perform
this task with its own vehicles and containers--as the contractor does on other
contract line items--rather than with government-furnished
equipment‑‑as originally required by the contract--came about only
because of the condition of the government's equipment (and at Atlantic's
suggestion). Since the essence of the requirement was for the contractor
to provide front-loading refuse collection, the Army's modification, merely
shifting the responsibility for the vehicles and the containers needed to
carryout the service to the contractor, did not substantially change the
contract, nor make it essentially different. Finally, there is nothing in
the record evidencing, nor has Atlantic shown, that if this portion of the
modification had been included in the original contract, the field of
competition would have materially changed, particularly given that the
contractor generally has to provide its own vehicles under the contract.
Atlantic also argues that the significantly increased cost to the unit price for
this line item of services establishes that the modification exceeded the scope
of the contract. However, where, as here, it is clear that the nature and
purpose of the contract have not changed, a substantial price increase alone
does not establish that the modification is beyond the scope of the contract.
While the contractor's unit price for the service did substantially increase,
the Army noted that this price was lower than Atlantic's price for performing
the same service. Thus, we find that the increased cost is not in this
case persuasive evidence that the modification exceeded the contract's scope.
See Techno-Sciences, Inc., B-277260.3, May 13, 1998, 98-1 CPD
¶ 138 at 8; Defense Sys. Group et al., B-240295 et al., Nov.
6, 1990, U.S. Comp. Gen. LEXIS 1182 at *11-13.
In sum, we find that the modification did not exceed the scope of the contract,
because it did not materially change the purpose of the contract.
The protest is denied.
Anthony H. Gamboa
General Counsel