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SINCE IT IS CLEAR THAT THE CHANGES DID NOT EFFECT A SUBSTANTIAL CHANGE IN THE ORIGINAL PURPOSE OF THE CONTRACT. WE ARE UNABLE TO CONCLUDE THAT THE CHANGES WERE BEYOND THE SCOPE OF THE CONTRACT. THE PROTEST IS DENIED. THE REQUEST FOR PROPOSALS (RFP) UNDER WHICH THE CONTRACT WAS AWARDED CALLED FOR HOURLY FLIGHT RATES ON TWO TWIN-ENGINE AIRCRAFT. THE SECOND AIRCRAFT WAS TO BE AVAILABLE BEGINNING ON MAY 12 AND ENDING ON JULY 10 (60 DAYS) AT THE SAME BASE. WE ARE ADVISED THAT THIS CONTRACT AND. ALL AIR TANKER CONTRACTS WILL END AT THE CONCLUSION OF THE CURRENT FIRE SEASON DUE TO THE EXPECTED IMPLEMENTATION OF NEW AIR TANKER PROCUREMENT PROCEDURES BY THE FOREST SERVICE. IT IS REPORTED THAT. COGNIZANT FOREST SERVICE AIR OPERATIONS PERSONNEL DETERMINED THAT THE USE OF B-26 AIRCRAFT DURING TYPICAL FIRE WEATHER FROM THAT DESIGNATED BASE WAS "MARGINAL" AND PRESENTED A POTENTIAL SAFETY HAZARD.

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B-167003, B-167259, B-167846, SEP 17, 1973

DENIAL OF PROTEST AGAINST THE ISSUANCE OF CHANGE ORDER NO. 1 UNDER CONTRACT NO. 16-1704 BY THE UNITED STATES FOREST SERVICE, REGION 3, ALBUQUERQUE, NEW MEXICO. SINCE IT IS CLEAR THAT THE CHANGES DID NOT EFFECT A SUBSTANTIAL CHANGE IN THE ORIGINAL PURPOSE OF THE CONTRACT, AND IN LIGHT OF THE CONTRACTING AGENCY'S RESPONSIBILITY FOR CONTRACT ADMINISTRATION, WE ARE UNABLE TO CONCLUDE THAT THE CHANGES WERE BEYOND THE SCOPE OF THE CONTRACT. SEE B-176745, MAY 10, 1973 AND B-176628, JULY 9, 1973.

TO NATIONAL AIR TANKERS ASSOCIATION:

WE REFER TO YOUR LETTER DATED AUGUST 10, 1973, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE ISSUANCE OF CHANGE ORDER NO. 1 UNDER CONTRACT NO. 16-1704 BY THE UNITED STATES FOREST SERVICE, REGION 3, ALBUQUERQUE, NEW MEXICO. FOR THE REASONS STATED BELOW, THE PROTEST IS DENIED.

THE CONTRACT COVERED THE FURNISHING OF TWO FULLY OPERATIONAL AIR TANKERS INCLUDING QUALIFIED PILOTS, TO DROP FIRE RETARDANTS DURING THE 1972 FIRE SEASON. MORE SPECIFICALLY, THE REQUEST FOR PROPOSALS (RFP) UNDER WHICH THE CONTRACT WAS AWARDED CALLED FOR HOURLY FLIGHT RATES ON TWO TWIN-ENGINE AIRCRAFT, FULLY EQUIPPED TO MEET SPECIFICATIONS FOR CLASS "E" OR CLASS "J" AIR TANKERS. THE RFP AND RESULTANT CONTRACT REQUIRED THAT THE FIRST AIRCRAFT BE AVAILABLE AT GRANT COUNTY AIRPORT, SILVER CITY, NEW MEXICO, GILA NATIONAL FOREST, FOR A GUARANTEED PERIOD FROM APRIL 12 TO JULY 20 (100 DAYS). THE SECOND AIRCRAFT WAS TO BE AVAILABLE BEGINNING ON MAY 12 AND ENDING ON JULY 10 (60 DAYS) AT THE SAME BASE, AND FROM JULY 11 TO SEPTEMBER 8 (60 DAYS) AT ANOTHER DESIGNATED BASE, THE LATTER BASE NOT INVOLVED IN THIS PROTEST. THE CONTRACT PROVIDED FOR RENEWALS FOR 2 ADDITIONAL YEARS BY MUTUAL AGREEMENT THROUGH THE 1974 FIRE SEASON. HOWEVER, WE ARE ADVISED THAT THIS CONTRACT AND, IN FACT, ALL AIR TANKER CONTRACTS WILL END AT THE CONCLUSION OF THE CURRENT FIRE SEASON DUE TO THE EXPECTED IMPLEMENTATION OF NEW AIR TANKER PROCUREMENT PROCEDURES BY THE FOREST SERVICE.

ROSENBALM PERFORMED THE CONTRACT SERVICES REQUIRED DURING THE 1972 FIRE SEASON WITH TWO CLASS "E" OR DOUGLAS B-26 AIR TANKERS AT AN HOURLY FLIGHT RATE OF $300 FOR EACH AIRCRAFT AND DAILY AVAILABILITY RATES OF $176 AND $162 PER AIRCRAFT. IT IS REPORTED THAT, PRIOR TO THE TIME FOR CONTRACT RENEWAL FOR THE 1973 FIRE SEASON, ROSENBALM ADVISED THE CONTRACTING OFFICER OF A POTENTIALLY DANGEROUS SITUATION REGARDING THE OPERATION OF B- 26 AIRCRAFT FROM THE DESIGNATED BASE IN GRANT COUNTY. THEREAFTER, COGNIZANT FOREST SERVICE AIR OPERATIONS PERSONNEL DETERMINED THAT THE USE OF B-26 AIRCRAFT DURING TYPICAL FIRE WEATHER FROM THAT DESIGNATED BASE WAS "MARGINAL" AND PRESENTED A POTENTIAL SAFETY HAZARD. ALSO, DUE TO RECENT FUNDING CUTS, THE FOREST SERVICE WOULD BE REQUIRED TO ELIMINATE ONE AIR TANKER FROM BASES IN THE AREA. SINCE THE GRANT COUNTY BASE WAS THE ONLY BASE WITH TWO AIRCRAFT, AND AN AIR TANKER WAS AVAILABLE AT ANOTHER BASE FOR "BACK-UP" PURPOSES BECAUSE OF A LOWER THAN NORMAL PROJECTED FIRE DANGER, IT WAS DECIDED TO REDUCE THE AIRCRAFT AVAILABLE AT GRANT COUNTY FROM TWO TO ONE. THEREFORE, THE FOREST SERVICE ENTERED INTO NEGOTIATIONS WITH ROSENBALM WHICH RESULTED IN THE ISSUANCE OF CHANGE ORDER NO. 1 FOR THE CURRENT FIRE SEASON WHICH READS, IN PERTINENT PART, AS FOLLOWS:

"YOU ARE REQUESTED TO FURNISH ONE B-17 AIRCRAFT AT THE GRANT COUNTY AIRPORT RATHER THAN TWO B-26'S AS ORIGINALLY REQUESTED. THE FLIGHT RATE FOR THE B-17 SHALL BE $425.00 PER HOUR AND AVAILABILITY $173.50 PER DAY, WHICH INCLUDES THE REDUCTION SPECIFIED ABOVE.

"THE B-17 FURNISHED SHALL MEET ALL THE REQUIREMENTS FOR A CLASS F AIR TANKER AS SPECIFIED IN THE CONTRACT.

"ALL OTHER TERMS AND CONDITIONS SHALL REMAIN AS ORIGINALLY STATED, EXCEPT THAT THE CONTRACTOR SHALL SIGN CHANGE ORDER NO. 2 IF HE AGREES TO RENEW THE CONTRACT TO FURNISH A B-26 AT SALMON, IDAHO."

THE CHANGE ORDER WAS ISSUED PURSUANT TO CLAUSE 2 OF THE GENERAL PROVISIONS WHICH CONTAINS THE STANDARD CHANGES CLAUSE. THAT CLAUSE PERMITS CHANGES IN THE SPECIFICATIONS AND THE METHOD OR MANNER OF PERFORMANCE OF THE WORK. THE CHANGE MUST BE "WITHIN THE GENERAL SCOPE OF THE CONTRACT," AND THEREIN LIES THE GRAVAMEN FOR YOUR PROTEST.

WE HAVE REMARKED THAT WHETHER A CHANGE IS WITHIN THE GENERAL SCOPE OF THE CONTRACT IS NOT ALWAYS EASY TO DETERMINE. IN 50 COMP. GEN. 540, 542 (1971), WE CITED WITH APPROVAL THE COURT OF CLAIMS STATEMENT THAT CONSIDERATION SHOULD BE GIVEN BOTH TO THE MAGNITUDE AND QUALITY OF THE CHANGE AND WHETHER THE ORIGINAL PURPOSE OF THE CONTRACT HAD BEEN SUBSTANTIALLY CHANGED. SEE KECO INDUSTRIES, INC. V. UNITED STATES, 176 CT. CL. 983, 364 F.2D 838 (1966). SIMILARLY, IN ARAGONA CONSTRUCTION COMPANY, INC. V. UNITED STATES, 165 CT. CL. 382, 390, 391 (1964), THE COURT OF CLAIMS HELD THAT, IN DETERMINING WHETHER A CHANGE IS A CARDINAL CHANGE, IT MUST LOOK TO THE WORK DONE IN COMPLIANCE WITH THE CHANGE AND ASCERTAIN WHETHER IT WAS ESSENTIALLY THE SAME WORK AS THE PARTIES BARGAINED FOR WHEN THE CONTRACT WAS AWARDED. SEE, ALSO, B 176745, MAY 10, 1973.

THE FOREST SERVICE CONTENDS THAT FIRE CONTROL PERSONNEL BELIEVE THAT ONE B-17 WOULD PROVIDE ESSENTIALLY THE SAME PERFORMANCE AS TWO B-26'S AT ABOUT THE SAME COST PER DELIVERED GALLON OF RETARDANT. IT IS ALSO ARGUED THAT BROAD LANGUAGE IN THE CONTRACT PERMITS THE CHANGE IN THAT THE CONTRACT CALLS FOR THE DELIVERY OF RETARDANT AND NOT PARTICULAR AIRCRAFT. YOU ARGUE THAT THE QUALITY AND MAGNITUDE OF THE WORK WAS SO CHANGED AS TO REQUIRE A CONCLUSION THAT THE CHANGE WAS BEYOND THE SCOPE OF THE CONTRACT AND NOT THAT OFFERED ALL POTENTIAL BIDDERS. IN SO ARGUING, YOU CHARACTERIZE THE CHANGE ORDER AS AN ENTIRELY NEW AGREEMENT WHEREIN THE FOREST SERVICE WILL BE PROVIDED WITH ONE AIR TANKER DELIVERING 10 PERCENT LESS FIRE RETARDANT ONLY HALF THE DISTANCE REQUIRED AT JUST UNDER 69 PERCENT OF THE SPEED THAN THE TWO AIR TANKERS UNDER THE ORIGINAL CONTRACT.

IN B-176745, SUPRA, WE MADE THE FOLLOWING STATEMENT RELATIVE TO CONTRACT MODIFICATIONS WHICH WE BELIEVE IS DISPOSITIVE OF YOUR PROTEST:

"THE APPROPRIATENESS OF CONTRACT MODIFICATIONS INVOLVES CONTRACT ADMINISTRATION WHICH IS PRIMARILY THE FUNCTION AND RESPONSIBILITY OF THE CONTRACTING AGENCY, AND IS NOT ORDINARILY A MATTER FOR RESOLUTION UNDER OUR BID PROTEST PROCEDURES. SEE B-173916, APRIL 20, 1972. FROM THE RECORD IN THE INSTANT CASE, WE BELIEVE THAT IT COULD BE ARGUED THAT THE MAGNITUDE AND QUALITY OF THE CHANGES WERE NOT WITHIN THE GENERAL SCOPE OF THE CLAUSE. HOWEVER, SINCE IT IS CLEAR THAT THE CHANGES DID NOT EFFECT A SUBSTANTIAL CHANGE IN THE ORIGINAL PURPOSE OF THE CONTRACT, AND IN LIGHT OF THE CONTRACTING AGENCY'S RESPONSIBILITY FOR CONTRACT ADMINISTRATION, WE ARE UNABLE TO CONCLUDE THAT THE CHANGES WERE BEYOND THE SCOPE OF THE CONTRACT."

SEE, ALSO, B-176628, JULY 9, 1973.

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