United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: Cornische Aviation & Maintenance, LTD

File: B-405013.4

Date: January 25, 2013

Jimmy Rafiee, for the protester.

Robert A. Burton, Esq., and Rebecca E. Pearson, Esq., Venable LLP, and Stephen 

J. O’Connor, Esq., Tobin, O’Connor & Ewing, for Science and Engineering 

Services, Inc., an intervenor.

Debra J. Talley, Esq., and David C. Sabine, Esq., Department of the Army, for the 

agency. 

Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

1. Challenge to the modification of a delivery order for the overhaul of Mi-17 

helicopters is denied where the modification is within the scope of the underlying 

contract.

2. Challenge to the modification of a delivery order that essentially argues that the 

current contractor lacks the ability to perform the work is dismissed as GAO does 

not review matters of contract performance.

DECISION

Cornische Aviation & Maintenance, LTD, of Dubai, United Arab Emirates, protests 

the decision of the Department of the Army to modify the Logistics Support Facility 

(LSF) contract, No. W52P1J-07-R-0082, held by Science and Engineering Services, 

Inc. (SES), of Huntsville, Alabama. The protester argues that the modification of a 

delivery order issued under the LSF contract, which directed SES to perform 

overhauls of Mi-17 helicopters,1

 

1 The term Mi-17 here refers generally to a number of variants of the Russian-made 

Mi-17 helicopter. AR at 4 n.2. 

is improper because it exceeds the scope of the 

underlying LSF contract, and because SES cannot perform the work. 
Page 2 B-405013.4 

We deny in part and dismiss in part the protest.

BACKGROUND

On August 31, 2007, the Army Sustainment Command awarded the LSF contract to 

SES, which is a single-award, indefinite-delivery, indefinite-quantity contract. The 

scope of the LSF contract includes a broad range of aircraft repair, modification, 

overhaul, fabrication, and sustainment support activities. Agency Report (AR), 

Tab C, Contract 0082 Statement of Work (SOW), at 1-3. The contract had a 

maximum value of $409 million. AR at 1. On June 11, 2009, responsibility for the 

LSF contract was transferred to the Army Contracting Command, and the LSF 

contract was redesignated as contract No. W58RGZ-09-D-0130. Id. at 1-2. The 

underlying terms and scope of work of the LSF contract remained the same.

On August 17, 2010, the Army issued a justification and approval (J&A) increasing 

the ceiling of the LSF contract by $275 million, based on the authority provided 

under 10 U.S.C. § 2304(c)(1) for other than competitive contract awards or 

modifications where there is only one responsible source available. AR, Tab F.1, 

2010 J&A, at 3, 5. This J&A was publicized on the FedBizOpps website on August 

19. AR, Tab E.4, FedBizOpps Synopsis (Aug. 19, 2010).

On April 11, 2011, the Army issued modification No. 4 to LSF contract delivery order 

No. 102, which directed SES to overhaul five Mi-17 helicopters in support of the 

government of Pakistan. AR at 2. On November 3, 2011, the Army issued a J&A 

increasing the ceiling of the LSF contract to $1.16 billion, based on the authority of 

10 U.S.C. § 2304(c)(1). AR, Tab F.2, 2011 J&A, at 3, 6-7. The J&A stated that the 

agency was in the process of conducting a competition for the requirements 

currently provided under the LSF contract, and that the increase in the ceiling was 

required to meet the agency’s needs until the competition was complete.2

 Id. at 8. 

This J&A was publicized on the FedBizOpps website on December 21. AR, 

Tab E.5, FedBizOpps Synopsis (Dec. 21, 2011).

On September 25, 2012, the Army issued modification No. 39 to delivery order 

No. 102, which directed SES to overhaul and modify five Mi-17 helicopters, and 

provide technical support and training, in support of the Afghanistan Air Force. AR, 

Tab G.4, Mod. 39 SOW, at 1, 14. Portions of the required work involve 

performance in Afghanistan. Cornische filed its protest challenging modification 

No. 39 with our Office on October 19.3

 

2 As of the date of the protest, the competition had not been completed.

 

3 Although the Army acknowledges that it never publicized modification No. 39, the 

Army and SES argue that the protest is untimely because Cornische did not 

(continued...)
Page 3 B-405013.4 

DECISION

Cornische argues that modification No. 39 was improper for two primary reasons.4 

First, the protester argues that the requirements of the modification were outside the 

scope of the underlying LSF contract. Second, Cornische argues that the Army 

should not have issued the modification because, the protester contends, SES is 

not capable of performing the work. Cornische contends that it could have provided 

the parts and services required under the modification, and that it would have 

competed for the award had it been subject to full and open competition. For the 

reasons discussed below, we deny the first argument, and dismiss the second 

argument. 

Once a contract is awarded, our Office generally will 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. 31 U.S.C. 

§ 3552 (2006); 4 C.F.R. § 21.5(a); DOR Biodefense, Inc.; Emergent BioSolutions, 

B-296358.3, B-296358.4, Jan. 31, 2006, 2006 CPD ¶ 35 at 6. An 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 be subject to the 

statutory requirements for competition. Lasmer Indus., Inc., B-400866.2 et al., 

Mar. 30, 2009, 2009 CPD ¶ 77 at 6.

In determining whether a modification triggers the competition requirements under 

CICA, we look to whether there is a material difference between the modified 

contract and the contract that was originally awarded. Engineering & Prof’l Servs., 

 

(...continued)

establish when it learned of the modification, and thus did not meet its obligation to 

demonstrate that its protest was timely. See Bid Protest Regulations, 4 C.F.R. 

§ 21.1(c)(6) (2012). The protester states that it became aware of the modification 

on October 17, 2012, based on a conversation with “a friend who is working in 

support of the Army Mi-17 program,” whom the protester did not wish to identify 

based on concerns that the individual might face retaliation. Protest at 2; Email 

from Cornishe to GAO (Nov. 27, 2012). In light of the agency’s acknowledgement 

that it never publicized the modification, we think that the facts here demonstrate 

that the protest was timely filed within 10 days of when Cornische knew or should 

have known of the basis of its protest.

4 Cornishe raises numerous collateral arguments. We have reviewed all of the 

issues identified by the protester and find that none provides a basis to sustain the 

protest.
Page 4 B-405013.4 

B-289331, Jan. 28, 2002, 2002 CPD ¶ 24 at 4; see AT&T Commc’ns, Inc. v. Wiltel, 

Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993). Evidence of a material difference between 

the modification and the original contract is found by examining changes in the type 

of work, costs, and performance period between the contract as awarded and as 

modified. Overseas Lease Group, Inc., B-402111, Jan. 19, 2010, 2010 CPD ¶ 34 at 

3. We also consider whether the solicitation for the original contract adequately 

advised offerors of the potential for the type of changes found in the modification, 

and thus whether the modification would have materially changed the field of 

competition. Atlantic Coast Contracting, Inc., B-288969.2, June 21, 2002, 2002 

CPD ¶ 104 at 4.

Here, Cornishe argues that modification No. 39 is outside the scope of the 

underlying LSF contract because it requires performance of aircraft overhauls, 

which the protester argues are not within the scope of the LSF contract. The 

protester also argues that performance of requirements outside the Continental 

United States is not within the scope of SES’s LSF contract. 

The Army argues that the SOW for modification No. 39 is expressly within the scope 

of the LSF contract. We agree. As noted above, the SOW for the LSF contract 

specifically addresses aircraft repairs, overhauls and related logistics support. It 

does not limit the type of aircraft for performance, and instead broadly addresses 

the following categories of work:

(1) Repair, update, integrate, overhaul or modify various items of 

Communications-Electronics (C-E), navigational fire control, aircraft 

and . . . associated hardware.

(2) Repair, update, overhaul or modify end items (example: aircraft, 

shelters, tooling) that contain, use or transport other Class VII (Major 

End Items), e.g., mobile communication or aircraft systems as 

required.

* * * * * 

(6) Perform modification and repair on designated aircraft and on 

components at locations in and outside of the continental United 

States. This includes aircraft engine overhaul, aircraft refurbishment, 

transmission overhaul, etc. 

AR, Tab E, Contract No. 0130 SOW, at 1-2.

The record here shows that overhauls were clearly within the scope of the LSF 

contract. The record further shows that the SOW clearly anticipated performance of 

work “at locations in and outside of the continental United States.” Id. at 2. For this 
Page 5 B-405013.4 

reason, we find no merit to the protester’s argument that the requirements of 

modification 39 are outside the scope of the LSF contract.

The protester also argues that the requirements of modification 39 are outside the 

scope of work authorized by the November 2011 J&A, in that the J&A did not 

mention overhauls of Mi-17 helicopters. In this regard, the protester notes that the 

November 2011 J&A stated that the agency anticipated ordering cockpit 

modifications for Mi-17 helicopters, but not overhauls.5

 The protester also contends 

that the 2011 J&A authorized work in support of the Pakistan government, but not 

the Afghanistan government.

As the Army contends, however, the purpose of the J&As was to increase the 

ceiling value of the LSF contract, and while each J&A cited estimates of work to be 

performed, the work estimates did not modify the scope of the LSF or otherwise 

restrict the scope of work under the LSF contract. We agree, and conclude that the 

LSF contract, rather than the 2011 J&A, is the relevant document for determining 

whether modification No. 39 was an in-scope modification. On this record, we deny 

Cornishe’s argument that modification No. 39 is outside the scope of the LSF 

contract.

Cornishe’s second argument does not directly challenge the scope of modification 

No. 39. Instead, the protester contends that SES is not capable or authorized to 

perform the requirements of the modification. Cornische alleges that SES will 

perform the contract through a contractual relationship with Avia Baltica and Spark, 

companies that the protester contends have been recommended for debarment or 

are otherwise unable to meet the performance requirements of modification No. 39. 

The protester also argues that overhaul work for Mi-17 helicopters must be 

performed at facilities specifically certified for that purpose, and that SES does not 

have such facilities. The protester also alleges that SES has been accused of other 

procurement-related improprieties, that the Army chose not to investigate. 

These arguments relate solely to the ability or eligibility of SES to perform under its 

existing contract, and do not relate to the scope of the modification. As discussed 

above, our Office considers challenges to the award or proposed award of 

contracts. 31 U.S.C. § 3552. Whether a contractor performs in accordance with the 

requirements of a solicitation or resultant contract is a matter of contract 

administration that we do not review as part of our bid protest function. 4 C.F.R. 

§ 21.5(a); ARINC Eng’g Servs., LLC, B-403471.2, Nov. 5, 2010, 2010 CPD ¶ 270 

at 5; Public Facility Consortium I, LLC; JDL Castle Corp., B-295911, B-295911.2, 

 

5 Cornishe does not separately argue that the 2011 modification to provide Mi-17 

overhauls for the Pakistani government were not within the scope of the 2011 J&A. 
Page 6 B-405013.4 

May 4, 2005, 2005 CPD ¶ 170 at 4-5. For this reason, we dismiss the protester’s 

second argument. 

The protest is denied in part and dismissed in part.

Susan A. Poling

General Counsel