TITLE:  Atlantic Coast Contracting, Inc
BNUMBER: B-288969.4 
DATE:  June 21, 2002
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Atlantic Coast Contracting, Inc, B-288969.4, June 21, 2002

Decision


Matter of:   Atlantic Coast Contracting, Inc

File:            B-288969.4

Date:           June 21, 2002

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 ï¿½ 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. ï¿½ 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. ï¿½ 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. ï¿½ 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 ï¿½ 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. ï¿½ 21.5(a) (2002); Stoehner Sec. Servs., Inc.,
B-248077.3, Oct. 27, 1992, 92-2 CPD ï¿½ 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 ï¿½ 212 at 2, aff'd,
Department of Labor--- Recon., B-237434.2, May 22, 1990, 90-1 CPD ï¿½ 491.

In determining whether a modification triggers the competition requirements
in the Competition in Contracting Act of 1984, 10 U.S.C. ï¿½ 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 ï¿½ 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 ï¿½ 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 ï¿½ 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


                          -------------------------

[1] Separate monthly and extended prices for the indefinite collection
services was covered by Section B, Item No. 0003AD, of the schedule.
[2] This modification made a variety of other changes to the contract price,
e.g., obtaining a credit from the contractor for tipping fees, none of which
has been protested.  The total result of the changes was to increase the
contract price to $3,068,874.73.
[3] Contrary to the protester's arguments, we find no confusion in the
contract as to whether the requirements to perform front-loading refuse
collection services were included.