Matter of:Hughes Space and Communications Company

B-276040 May 02, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Because the fundamental nature and purpose of the contract was not changed. Hughes argues that the modification to provide satellite transponder services for the Armed Forces Radio and Television Service (AFRTS) exceeds the scope of the CSCI contract and is an improper sole-source award. Specific satellite transponder characteristics for domestic and international service regions were provided. These satellite communication services are to provide AFRTS service and programming. Which is now routinely provided for entertainment and morale purposes to other military personnel outside the continental United States. The maximum number of transponders that could be ordered under the contract and period of performance were not changed. View Decision Matter of: Hughes Space and Communications Company File: B-276040 Date: May 2, 1997 DIGEST Attorneys DECISION Hughes Space and Communications Company protests the Defense Information Systems Agency's (DISA) modification of contract No. DCA200-95-D-0079 (called the Commercial Satellite Communication Initiative (CSCI) contract) with COMSAT RSI, Inc. for satellite communications services. Hughes argues that the modification to provide satellite transponder services for the Armed Forces Radio and Television Service (AFRTS) exceeds the scope of the CSCI contract and is an improper sole-source award. We deny the protest. The CSCI contract, which DISA competitively awarded to COMSAT on July 18, 1995, provides, among other things, for the lease of a minimum of 2 and a maximum of 45 satellite transponders on an indefinite delivery, indefinite quantity (ID/IQ) basis. [1] The satellite transponder leases could be for domestic or international service. The contract statement of work provides: "The DISA intends to use the satellite transponders provided under this contract whenever the [Department of Defense] DOD requires commercial satellite communications support to any location in the footprint of the available satellite transponders, subject to [Federal Communications Commission] FCC or host national approval and the minimum and maximum limitations specified under the ID/IQ contract." Specific satellite transponder characteristics for domestic and international service regions were provided, describing, among other things, the required coverage, frequency bands, and bandwidth. The contract also provided that COMSAT could "not preempt satellite transponders leased to the DISA" and that in the event of operational, performance, or satellite failure, COMSAT would repair or replace the affected satellite transponder within 6 hours of the failure. On December 26, 1996, DISA announced in the Commerce Business Daily (CBD) its intention to award the AFRTS services to COMSAT, but invited interested vendors to submit proposals. These satellite communication services are to provide AFRTS service and programming, which is now routinely provided for entertainment and morale purposes to other military personnel outside the continental United States, to U.S. Navy ships in the Atlantic, Pacific, and Indian Ocean Regions. On January 10, 1997, COMSAT and Hughes submitted proposals in response to the CBD request. On January 17, DISA issued Modification No. 12 to COMSAT's CSCI contract to provide for the AFRTS services over three transponders under that contract; the maximum number of transponders that could be ordered under the contract and period of performance were not changed. This protest followed, challenging the modification as being outside the scope of COMSAT's contract. [2] As a general rule, our Office will not consider protests against contract modifications because they involve matters of contract administration. 4 C.F.R. Sec. 21.5(a) (1997); American Air Filter Co., Inc., 57 Comp.Gen. 285, 286 (1978), 78-1 CPD Para. 136 at 2. However, we recognize an exception to this rule where, as here, it is alleged that a contract modification is beyond the scope of the original contract, such that the work covered by the modification would be subject to the requirement for competition absent a valid sole source determination. Neil R. Gross & Co., Inc., 69 Comp.Gen. 292, 294 (1990), 90-1 CPD Para. 212 at 2. In determining whether a modification improperly exceeds the scope of the contract, we consider whether the contract as modified is materially different from the original contract for which the competition was held. Id., 69 Comp.Gen. 294, 90-1 CPD Para. 212 at 2-3. The question of whether there is material difference is resolved by considering factors such as the extent of any changes in the type of work, performance period, the costs between the contract as awarded and as modified, and whether the agency itself had historically procured the services under a separate contract, as well as whether potential offerors reasonably would have anticipated the modification.