BNUMBER:  B-277260.3 
DATE:  May 13, 1998
TITLE: Techno-Sciences, Inc., B-277260.3, May 13, 1998
**********************************************************************

Matter of:Techno-Sciences, Inc.

File:     B-277260.3

Date:May 13, 1998

Minh N. Vu, Esq., Latham & Watkins, for the protester.
Mark Langstein, Esq., and Amy L. Freeman, Esq., Department of 
Commerce, 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

Two task orders are within the scope of an existing contract for the 
operation, maintenance, and technical support of the United States 
Mission Control Center (USMCC) online and offline system, where that 
contract specifically contemplated that operations, maintenance, and 
technical support would include whatever was necessary to support the 
USMCC mission, except maintenance of the proprietary software, and the 
task orders at issue cover software development to work around 
problems in the protester's proprietary software currently operating 
the online functions; analysis of the functional requirements of the 
online system; design of new software for the USMCC, including the 
online functions; and installing and testing the new software. 

DECISION

Techno-Sciences, Inc. protests two task orders issued under contract 
No. 50-DDNE-5-00039, between the National Oceanic and Atmospheric 
Administration (NOAA) and Science Systems and Applications, Inc. 
(SSAI) for operation and maintenance of the United States Mission 
Control Center (USMCC).  Techno-Sciences contends that the task orders 
exceeded the scope of SSAI's contract and should have been procured 
competitively.

We deny the protest.

In 1979, several countries, including the United States, developed the 
Space System for Search of Vessels in Distress/Search and Rescue 
Satellite Aided Tracking Cospas-Sarsat Program, which utilizes 
satellites to detect and locate radio beacons emitted by ships, 
aircraft, or individuals.  The United States and certain other 
countries operate mission control centers (MCC) that are responsible 
for processing and distributing search and rescue information to the 
appropriate rescue entity.    

The current USMCC is comprised of online functions, offline functions, 
and monitoring and analysis functions.  The online functions include 
communications; alert data processing; Cospas-Sarsat system data 
processing; local user terminal (LUT) monitoring and control; data 
archive and daily event logging; geographical display; performance and 
monitoring data collection; data recovery; and self-test, status, 
security, and alarm.  The offline functions of the current USMCC 
include maintaining the 406 megahertz registration data base; orbit 
vector processing; LUT pass scheduling; location protocol beacon 
bypass; and search and rescue data analysis mapping and display.  The 
automated portion of the monitoring and analysis functions include the 
self-test and monitoring system, the incident history data base, the 
LUT monitoring data base, and the operator-based logs and display 
software.

SSAI has been the operations, maintenance, and technical support 
contractor for  
the USMCC since 1986, and has assisted the agency in the major 
software development effort associated with transferring the USMCC 
from Scott Air Force Base to NOAA's facility in Suitland, Maryland.  
The effort required the development of new applications software and 
data base enhancements to run both the online and offline portions of 
the USMCC that was completed in 1990.  

In 1991, NOAA contracted with Techno-Sciences to develop new online 
software to operate on a personal computer (PC) system rather than on 
the mainframe computer previously utilized for these functions.  
Techno-Sciences developed proprietary software for the operation of 
all USMCC online functions based upon  functional requirements defined 
by SSAI and itself.  The conversion to a PC-based system using 
Techno-Sciences's proprietary software was completed on October 27, 
1993.  Techno-Sciences had been responsible for maintaining its 
proprietary software under a sole-source contract let in May 1994 for 
a base year with 4 option years.  The option years contained a 
guaranteed minimum price of $200,000 for each option year.  After 
unsuccessfully attempting to purchase the proprietary software from 
Techno-Sciences or to renegotiate what it considered to be 
unreasonably priced options, NOAA did not exercise the option for 
Techno-Sciences's contract for the period May 10, 1996 to May 9, 1997.  
The agency attempted to obtain maintenance of the online software by 
issuing Techno-Sciences a purchase order to perform the services 
on-call but Techno-Sciences declined.[1]

SSAI has been responsible for maintaining the offline and other USMCC 
software, and operating the USMCC on a continuous, 24-hour basis.  The 
current contract with SSAI for operation and maintenance of the USMCC 
was competitively awarded on June 15, 1995.  It is a combined 
fixed-price and cost-plus-fixed-fee, level-of-effort contract for a 
base period with 4 option years at an estimated award price of 
$6,217,429.  The cost-reimbursement portion of the contract was 
awarded at an estimated cost of $795,657 for the base period and 
$811,933, $831,378, $852,548, and $876,385, respectively, for the 
option years.  

Section C.2  of the contract statement of work (SOW), entitled Scope 
of Work, states:

     This SOW defines the required support for operation including 
     data entry, software maintenance, and technical support of the 
     [USMCC].  Although the contractor shall not be responsible for 
     the maintenance of any proprietary software used in the USMCC, 
     the contractor shall be responsible for its usage, operation, the 
     knowledge of its functions, and monitoring its performance.

     The contractor shall provide trained computer operators to 
     operate the USMCC on an around-the-clock basis and data entry 
     operators to perform data entry for USMCC data bases.  Operations 
     and data entry shall be performed onsite at . . . Suitland, MD.  
     Software maintenance shall consist of corrective, adaptive, and 
     perfective maintenance of applications and non-proprietary 
     software of the USMCC as identified in Section C.3.B of this 
     SOW.[2]  Corrective software maintenance shall be required on a . 
     . . (24) hour/day basis.  Technical Support shall consist of 
     support to the Government in the areas of analysis of new or 
     changing COSPAS-SARSAT requirements, monitoring the performance 
     of the U.S. ground segment including the USMCC, LUTs,  data 
     communications links and hardware, operational maintenance of 
     data communications hardware at the US LUTs, US RCCs [Rescue 
     Coordination Centers] and USMCC, briefings, tours, technical 
     participation in national and international COSPAS-SARSAT 
     meetings, and other support as required by the Government in 
     support of the COSPAS-SARSAT mission.

Section C.4.C of SOW states:

     Work defined in this Section C.4.C shall be performed on a cost 
     reimbursable basis.  The contractor shall provide technical and 
     analysis support to the government in support of the USMCC 
     mission and COSPAS-SARSAT.  As part of this support, the 
     contractor shall:

        -attend and participate in COSPAS/SARSAT related national and 
        international meetings as requested by the Government

        -provide briefings and tours for visitors as required

        -provide technical support for the analysis of false alarms 
        and interferers, the definition of service areas, the addition 
        of new [Search and Rescue Point of Contacts], the evaluation 
        of new COSPAS-SARSAT related technology, and the commissioning 
        of new MCCs

        -define the communications paths and techniques as locations 
        are added or deleted to the locations to which the USMCC 
        communicates

        -troubleshoot data communications problems

        -maintain all data communications operational parameters 
        including USMCC and LUT switch settings and script for 
        accessing network services and status

        -monitor and maintain communications and terminal equipment 
        including printers at the RCCs and X.25 switches at the LUTs 
        and USMCC

        -provide the necessary maintenance and administrative services 
        for the [local area network].

After not exercising the option under Techno-Sciences's contract, NOAA 
began efforts to replace Techno-Sciences's proprietary software.  In 
furtherance of this objective, NOAA issued task order No. 2 on June 
28, 1996 under the cost-reimbursement portion of the SSAI contract.  
Section 2.0 of this task order states:

     In the absence of a maintenance contractor for the online 
     software, [SSAI] shall provide appropriate personnel to analyze 
     problems detected in the online software and take appropriate 
     action to minimize or eliminate the problems including the 
     development of software to work around the online functions 
     causing the problems.

In section 4.0, entitled Technical Support, of this task order, 
various significant changes in the USMCC, including the need to 
replace the proprietary online software with a nonproprietary 
software, are set forth and it is stated: 

     The resultant requirements revisions have become difficult to 
     manage because of confusion between hard requirements and those 
     with sufficient support.  Therefore [SSAI] shall collect and 
     analyze the total set of requirements for the USMCC functions and 
     develop a new USMCC Functional Requirements Document.  The 
     Contractor shall also provide appropriate Requirements Reviews to 
     allow the Government to approve the newest set of USMCC 
     requirements.  .  .  .  Based on the approved set of 
     requirements, [SSAI] shall develop a Preliminary Design for an 
     upgraded USMCC.

Task order No. 3, issued on June 26, 1997, added further work to the 
SSAI contract.  This order, among other things, required the following 
technical support:

     Provide Systems Analysis and Design Analysis Support for the 
     Development of the FG [fourth generation] USMCC.  The USMCC 
     Support Services Contractor shall continue the design analysis 
     for the FG USMCC.  This will include the development of Program 
     Design Specifications for the subsystems identified in the FG 
     USMCC preliminary design; the development of test plans and test 
     data sets for FG USMCC testing and assistance to the FG USMCC 
     development contractor for design related issues.

On March 14, 1997, NOAA awarded a section 8(a) contract to Research 
and Professional Services, Inc. (RPS) to code, test, and maintain 
nonproprietary software to operate the online functions of the USMCC 
at an estimated cost of $829,256.  Techno-Sciences protested that 
RPS's award price exceeded the fair market price for the software in 
violation of Federal Acquisition Regulation  sec.  19.806(b).  We sustained 
the protest because, in determining whether the RPS contract amount 
exceeded a fair market price, the agency had not considered 
Techno-Sciences's offer to supply nonproprietary software to meet the 
agency's requirements at a far lower price.  We recommended that the 
agency review its fair market price estimate specifically considering 
Techno-Sciences's MCC software.  Techno-Sciences, Inc., B-277260, 
Sept. 22, 1997, 97-2 CPD  para.  115 at 8.

NOAA undertook a market survey on November 6, 1997.  Techno-Sciences 
protested the propriety of the survey.  We sustained this protest 
because Techno-Sciences was being requested to submit a price for 
items that were not included in the RPS contract such that the results 
of the survey would not fairly show whether the contract exceeds a 
fair market price.  We again recommended that the agency review its 
fair market price estimate, considering Techno-Sciences's MCC 
software, so as to determine whether the RPS contract exceeds a fair 
market price.  Techno-Sciences, Inc., B-277260.2, Mar. 25, 1998, 98-1 
CPD  para.  ___.[3]  

During the course of Techno-Sciences's protest involving the market 
survey, it discovered that NOAA had issued task orders to SSAI's 
operations and maintenance contract to require that contractor to 
perform various work that affected the online software portion of the 
USMCC.  In this regard, the record developed during the course of that 
protest established that SSAI has developed certain software to work 
around Techno-Sciences's proprietary software, has analyzed the online 
requirements and documented them in a functional requirements 
document, and has developed detailed design specifications for online 
software to replace Techno-Sciences's proprietary software.

Techno-Sciences protests that task order Nos. 2 and 3 are outside the 
scope of  SSAI's contract.  Those task orders require SSAI to perform 
work-arounds to Techno-Sciences's proprietary online software; to 
analyze and develop a functional requirements document to include the 
online functions; to design the software for the FG USMCC, including 
the online functions; and to test and install the FG USMCC software.  
In support of its contention that the work is beyond the scope of 
SSAI's contract, the protester points to the language in the SOW that 
expressly provides that SSAI is not responsible for maintaining any 
proprietary software, the fact that no express language covering the 
work is contained in the contract, the fact that when SSAI's contract 
was let Techno-Sciences was responsible for maintaining the 
proprietary online software, and the fact that costs under the 
contract have exceeded the estimated price of the work.

NOAA responds that the work being performed by SSAI under these task 
orders is within the scope of SSAI's contract because of the broad 
language of the technical support section of the SOW, which was said 
to cover support of the entire COSPAS-SARSAT mission as well as the 
USMCC effort--both online and offline functions--with the sole 
exception of maintaining Techno-Sciences's proprietary software.  NOAA 
further notes that the scope of work contemplated that SSAI would have 
responsibility for the online system, with the one exception of 
maintenance of the proprietary software, and asserts that developing 
software to work around Techno-Sciences's software is not maintenance 
and that designing replacement online software is a technical service 
contemplated under the SOW.  Finally, NOAA maintains that the costs in 
connection with these tasks have only slightly increased the costs of 
SSAI's contract.  We agree with NOAA that the work in question is 
within the scope of SSAI's contract.

Once a contract is awarded, our Office generally will not review 
modifications or task orders issued under that contract, because such 
matters are related to contract administration and are beyond the 
scope of our bid protest function.  4 C.F.R.  sec.  21.5(a) (1998); MCI 
Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD  para.  90 at 7.  An 
exception to this rule is where it is alleged that a modification (or 
task order, as in this case) is beyond the scope of the original 
contract, since the work covered by the modification or task order 
would otherwise be subject to the statutory requirement for 
competition (absent a valid determination that the work is appropriate 
for procurement on a sole-source basis).  41 U.S.C.  sec.  253(a)(1)(A) 
(1994);  MCI Telecomms. Corp., supra; Data Transformation Corp., 
B-274629,
Dec. 19, 1996, 97-1 CPD  para.  10 at 6; Indian and Native Am. Employment 
and Training Coalition, B-216421, Apr. 16, 1985, 85-1 CPD  para.  432 at 2.  

In determining whether a modification or task order is beyond the 
scope of the contract originally ordered such that competition is 
required, our Office looks to whether there is a material difference 
between the modification or task order and that contract.  MCI 
Telecomms. Corp., supra; see AT&T Communications, Inc. v. Wiltel, 
Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993).  Evidence of such a material 
difference is found by reviewing the circumstances attending the 
procurement that was conducted; examining any changes in the type of 
work, performance period, and costs between the contract as awarded 
and as modified by the task order; and considering whether the 
original contract solicitation adequately advised offerors of the 
potential for the type of modification or task order issued.  Indian 
and Native Am. Employment and Training Coalition, supra; Data 
Transformation Corp., supra.  The overall inquiry is "whether the 
modification is of a nature which potential offerors would reasonably 
have anticipated."  Neil R. Gross & Co., Inc., B-237434, Feb. 23, 
1990, 90-1 CPD  para.  212 at 3, cited in AT&T Communications, Inc. v. 
Wiltel, Inc., 1 F.3d at 1207.
 
The record shows that the express purpose of the SSAI contract is to 
provide NOAA with the required support necessary to operate and 
maintain the USMCC.  Consistent with this purpose, the language in the 
scope of work broadly defines technical support to include, among 
other things, analysis of new or changing Cospas-Sarsat requirements, 
and other support as required by the Cospas-Sarsat mission.  Further, 
section C.4.C of the SOW specifically requires SSAI to provide 
technical and analysis support to the government in support of the 
USMCC mission and Cospas-Sarsat, without any stated restrictions.  
Also, the SOW makes clear that the only aspect of operations, 
maintenance, and technical support of the USMCC for which SSAI is not 
responsible is the actual maintenance of Techno-Sciences's online 
proprietary software; indeed, without access to the source code to the 
online software, SSAI could not practicably maintain that software.  
We agree with NOAA that the development of the work-arounds to the 
software to allow the USMCC system to work does not constitute 
maintenance of the proprietary software as defined in the SOW.  
Inasmuch as the work ordered in task order Nos. 2 and 3 constitutes 
technical analysis and support necessary for the USMCC/Cospas-Sarsat 
missions, we think that the work is not materially different in 
character or nature from the work specified in the SSAI contract.  

Techno-Sciences's argument (that the work is outside the scope since 
the contract did not expressly mention technical analysis of, 
developing work-arounds to, and designing a replacement online system 
for the proprietary software) ignores the fact that the language in 
the contract intentionally does not limit SSAI's technical support 
responsibilities regarding the USMCC.  For example, under C.4.C, the 
specific examples listed are identified as only "part" of the 
technical analysis in support of the USMCC mission and Cospas-Sarsat.  
Given the agency's problems with Techno-Sciences's USMCC software 
(including its proprietary nature) and the absence of a contract with 
Techno-Sciences to address these concerns, as well the necessity for 
other system upgrades to the USMCC, we think that the development of 
work-arounds to that software to allow the USMCC to operate and the 
design of new software for the USMCC, including for the online 
functions, fit within the broadly worded technical support section of 
the SSAI contract SOW, even though the need for these specific tasks 
was not known at the time of contract award.[4]  In this regard, since 
the USMCC is a dynamic system, undergoing annual and other changes on 
a constant basis, it could not be expected that every specific 
technical support activity that was necessary to support the USMCC 
mission would be listed.  See Lockheed Martin Fairchild Sys., 
B-275034, Jan. 17, 1997, 97-1 CPD  para.  28 at 5.  Thus, offerors should 
have reasonably anticipated that technical analysis and support might 
include services such as those ordered here.  See Hughes Space and 
Communications Co., B-276040, May 2, 1997, 97-1 CPD  para.  158 at 4.

Techno-Sciences argues that the increased price of the work by as much 
as $585,484 in relation to the original award price shows that work is 
outside the scope of the original contract.  The agency responds that 
this increase in contract value included other tasks unrelated to the 
protested work and the amount attributable to the cost of the online 
work is much less.  In any case, we do not think that a $582,484 
increase in contract value on a $6,217,429 contract is sufficient to 
establish that the modification is beyond the scope of a contract, 
where, as here, the modification has not changed the nature or purpose 
of the contract.  See Defense Sys. Group et al., B-240295 et al., Nov. 
6, 1990, 1990 U.S. Comp. Gen. LEXIS 1182, at *11-13.

In sum, we find that task order Nos. 2 and 3 did not contain work that 
was materially different from the work contemplated under the SSAI 
contract when it was awarded, and they are therefore not outside the 
scope of that contract.  

The protest is denied.

Comptroller General
of the United States

1. The protester asserts that it rejected this offer because it 
believed that the government was attempting to circumvent the terms of 
its canceled contract, but that it offered to perform emergency 
maintenance of its software at no cost to the government.

2. Section C.4.B of the SOW requires corrective maintenance (defined 
as the contractor's response to remedy a software problem), adaptive 
maintenance (defined as the changing of software to accommodate a 
change in requirements or the data environment), and perfective 
maintenance (defined as the change of software to better meet 
operational requirements).

3. NOAA has requested reconsideration of this decision, and that 
request is currently pending.

4. SSAI had performed similar duties under the predecessor operations, 
maintenance, and technical support contract.