was to illustrate that if NASA desired to alter the statement of work, the agency would have amended the solicitation and sent it out for re-competition. The fact that NASA did not re-solicit this procurement in accordance with CICA is evidence that NASA did not intend to alter the scope of work specified in the solicitation.” The defendant concedes that the CICA does not require an agency to issue a new or amended solicitation for every contractual change, but states, “‘modifications outside the scope of the original competed contract fall under the statutory competition requirement.’” (quoting AT&T Commc’n, Inc. v. Wiltel Inc. , 1 F.3d 1201, 1205 (Fed. Cir.), reh’g denied , en banc suggestion declined (Fed. Cir. 1993)). Plaintiff responds that the “Contract [Order] is CICA compliant,” and “to allow NASA to hide behind a claim that the Contract was not CICA compliant and therefore the language of the Solicitation is really the language of the Contract would be a great injustice.” The United States Court of Appeals for the Federal Circuit in AT&T Communication, Inc. v. Wiltel Inc. wrote: The Competition in Contracting Act (CICA) requires executive agencies, when procuring property or services, to “obtain full and open competition through the use of competitive procedures.” 41 U.S.C. § 253(a)(1)(A) (1988). CICA, however, does not prevent modification of a contract by requiring a new bid procedure for every change. Rather only modifications outside the scope of the original competed contract fall under the statutory competition requirement. CICA sets forth no standard for determining when modification of an existing contract requires a new competition or falls within the scope of the original competitive procurement. Id. at 1204-05 (footnote omitted). The Memorandum for the Record for the Order for Supplies and Services, “Award of Contract Order No. NNH05CC28D to Horn and Associates, Inc.,” signed by the Contracting Officer, specifically stated, “[t]he contract is CICA compliant.” Additionally, NASA amended the Order, the operative contractual document in this case, to exercise an option to extend the Order, pursuant to the terms of the Order, which included the “all contracts” language for the option year. The Amendment of Solicitation/Modification of Contract which exercised the option, and, which also was signed by the Contracting Officer, stated that except for extending the period of
12 performance, “[a]ll other terms and conditions remain the same.” At no time prior to the end of performance of the Order did the government suggest that the Order was not CICA compliant. With respect to CICA, the defendant, agrees, however, that “if the Court determines that the contract between the parties was for ‘audit recovery on all contract payments,’ rather than solely for fixed-price contracts …we are unaware of any authority, including the CICA, that would require the language of an executed, completed contract to be disregarded.” (emphasis added).
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