ORDER AND OPINION
This case concerns the Government’s policy of procuring services from the private sector. Plaintiff performed distribution services for the Defense Logistic Agency in Cherry Point, North Carolina. DLA is a division of the Department of Defense. When plaintiffs contract expired as of December 2004, the Agency decided to take the work in-house until it could issue a new solicitation. Plaintiff filed suit in this court, seeking an injunction and declaratory relief. Among the remedies that plaintiff sought was an order prohibiting the Government from taking the work in-house until it could resolicit the contract and the in-house organization could prevail in a publie/private cost comparison. Defendant filed a motion to dismiss plaintiffs application.
BACKGROUND
A. Early Proceedings
This case was filed first in federal district court. Plaintiff sought to enjoin the Government from taking over certain work that LABAT-Anderson had been performing under a contract with the Defense Logistics Agency
Plaintiffs contract was set to expire by its terms on November 30, 2004. LAB AT asked that we prohibit the Government from performing the services in-house until the Agency completed the resolicitation process and prevailed in a public/private cost comparison in compliance with OMB-Circular A-76. The possibility that this process could take up to two years was not disputed by the parties.
We were concerned that the Government may have avoided its own regulations, and that failure to act without further inquiry could result in plaintiffs having no remedy. For example, the Government produced a “deviation letter” from the Office of Management and Budget that had been issued the same day the district court had heard oral arguments on plaintiffs application for a temporary restraining order. The deviation letter permitted the Defense Logistics Agency to avoid Circular A-76 bid process requirements temporarily.
Defendant argued during the hearing in this court that the deviation letter exempts the Agency from Circular A-76 requirements and from Department of Defense regulations that refer to Circular A-76. We had no basis for knowing whether OMB has the authority to permit such a deviation, whether it could do so by a deviation letter filed in the midst of litigation, or whether it could exempt the Defense Logistics Agency from DOD regulations in addition to OMB regulations. It seemed unlikely that the OMB letter could affect the Government’s statutory obligations unless Congress so provided. See 10 U.S.C. § 2462. Government counsel argued to this court that the circumstances of this case were not covered by Circular A-76 and similar Department of Defense regulations, yet the Government’s use of the deviation letter from OMB suggested that they were.
We made findings regarding plaintiffs likelihood of success on the merits, the possibility of irreparable harm if the court did not act, the balance of hardships to the respective parties, and the effect on the public interest. We issued an Order staying the in-house conversion on December 1 and directing the parties to continue performance under the contact until no later than Noon on Friday, December 3. The Government filed a motion on December 2 asking that we vacate the stay Order. We held a second hearing later in the day, and granted the Government’s motion to vacate early the next morning.
B. Facts
Plaintiff LABAT-Anderson performed distribution services for the Department of Defense at its supply depot in Cherry Point, North Carolina pursuant to a fixed-price/in
Plaintiff began transition activities in August 2001 and assumed control of the entire operation on December 1 of that year. LA-BAT handled a variety of components for shipment to military installations. This included receiving, storing, packing, and marking such shipments. It also custom-fabricated packaging and implemented an “Inventory Accuracy Improvement Plan” to improve handling of the specialized parts and supplies for which plaintiff was responsible.
Various disputes arose throughout performance of the contract, including disagreements over invoicing and pricing, condition of the facilities, methods of quantifying work, and operation of the Inventory Accuracy Improvement Plan. Also, the Defense Logistics Agency omitted from plaintiffs contract certain packaging and packing duties that had been assigned to the depot only six months before contract award. The Agency informed plaintiff of the additional work shortly after award. LABAT threatened to stop performing the added work unless the parties could agree on a price but plaintiff performed all work under the contract despite not having resolved the disputes over a three-year period.
The parties’ last attempt at negotiating the add-work was in April 2004, seven months before expiration of the contract. The Agency informed plaintiff then that the Government would not exercise its option to renew the contract if they could not reach agreement on the various disputes. The Agency formally declined the option to extend five months later on September 30, 2004. Defendant informed LABAT that it intended to perform the work in-house with an Interim Government Operation until it could resolieit and award a new contract. The Agency emailed LABAT’s employees the same day, encouraging them to apply for positions with the Government’s in-house operation.
LABAT objected to defendant’s taking the work in-house, and filed suit in the District Court for the District of Columbia on October 20, 2004. The Government moved for dismissal of plaintiffs case for lack of subject matter jurisdiction, arguing that this was a procurement case that was within this court’s exclusive jurisdiction. The district court agreed and transferred the ease here on November 22.
C. Applicable Law
Plaintiff argued that four distinct sources of law support its position in this ease. These are (1) title 10 U.S.C. § 2462, directing the Department of Defense to procure services and supplies from the private sector; (2) 32 C.F.R. Parts 169.1 and 1691al, which give effect to section 2462; (3) Office of Management and Budget Circular A-76 (2003), which contains methods for Government agencies to employ in performing public/private cost comparisons; and (4) Executive Order 12,615, directing Executive agencies to obtain goods and services from private sources.
Title 10 U.S.C. § 2462 directs the Department of Defense to procure services and supplies from the private sector unless the Government can provide them in-house at lower cost. The statute grants a broad exception for functions that the Secretary determines must be performed by military or Government personnel. 10 U.S.C. § 2462(a). Subsection 2462(b) requires a “[rjealistic and fair cost comparison” to weigh the costs of private sector performance against in-house performance. The statute lists various costs
The Commercial Activities Program of the Department of Defense governs the procurement of commercial and industrial services and supplies. See 32 C.F.R. Parts 169 and 169a. These regulations give effect to 10 U.S.C. § 2462, though the regulations do not list that law among their sources of statutory authority. See 32 C.F.R. §§ 169.1 and 169a.l.
Office of Management and Budget Circular A-76 is not a Department of Defense regulation, but an instrument of the Executive Branch that provides procedures for government agencies to follow when conducting procurement solicitations and public/private cost comparisons. Parts 169 and 169a of the Department of Defense’s Commercial Activities Program incorporate those procedures by reference to Circular A-76. The Department of Defense uses the procedures established in Circular A-76 to perform the “[r]e-alistie and fair cost comparisons” required by 10 U.S.C. § 2462(b).
Executive Order 12,615 was issued before the enactment of 10 U.S.C. § 2462, on November 19, 1987. The Order directs Executive agencies to see that goods and services are provided by private industry, with certain exceptions. This is consistent with the government policy of procuring needed goods and services from the private sector.
DISCUSSION
The Government argued successfully to the district court that it lacked subject matter jurisdiction over this case because it is a procurement matter. Once the district court transferred the case here, defendant filed a motion to dismiss for lack of jurisdiction based on plaintiffs standing. The issue of standing is jurisdictional in this court. See 28 U.S.C. § 1491(b)(1). Subject matter jurisdiction is a threshold issue. See, e.g., LA-BAT-Anderson, Inc. v. United States,
I. Standing
The Tucker Act provides jurisdiction in this court
to render judgment on an action by an interested party objecting [1] to a solicitation by a Federal agency for bids or proposals for a proposed contract or [2] to a proposed award or the award of a contract or [3] any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.
28 U.S.C. § 1491(b)(1) (emphasis added). Thus, the jurisdictional issues are (1) whether this case involves a procurement and (2) whether LABAT is an “interested party.”
A. Procurement Suit
The district court agreed with defendant that this case involved a procurement and therefore was within this court’s exclusive jurisdiction. LABAT-Anderson, Inc. v. United States, No. 04-1826 (D.D.C. Nov.22, 2004). We have jurisdiction over bid protests brought by frustrated or potential bidders as challenges to the form or execution of a government solicitation, the review of bids and proposals, and the subsequent award of a government contract. Such suits are challenges to “a solicitation by a Federal agency for bids or proposals ... or to a proposed award or the award of a contract____” 28 U.S.C. § 1491(b)(1). The facts of this case do not concern a solicitation or award, but a decision by the Government not to conduct a solicitation.
LABAT alleges that the Government decided to perform the work in-house without first conducting a competitive solicitation and a public/private cost comparison, which violated numerous sources of law that mandate the procurement of supplies and services from the private sector. Although this case is not a review of a solicitation or award, it is a challenge to an “alleged violation of statute or regulation in connection with a procurement ....” Id.
The Federal Circuit held that the term “interested party” is defined consistently with the definition of the same term in the Competition in Contracting Act of 1984, 31 U.S.C. § 3551(2)(A). Am. Fed’n of Gov’t Employees v. United States,
Defendant argues that plaintiff has no standing because an actual procurement is not pending, citing MCI Telecommunications Corp. v. United States, 878 F.2d 362 (Fed.Cir.1989), Fire-Trol Holdings, LLC v. United States,
share of the mail distribution that otherwise would go to mainline carriers.
Fire-Trol was one of multiple suppliers of fire retardants to the Forest Service. The Forest Service issued a ruling prohibiting use of such fire retardants containing sodium ferroeyanide because of environmental concerns. It mandated use of a specified alternative product that was available from only one supplier. This converted the Forest Service’s purchase of fire retardants to a sole-source procurement. Defendant cites Fire-Trol for its holding that “[t]here must be ‘outstanding a specific viable solicitation’ before [a plaintiff] can establish that it is a bidder or offeror.”
The holding in Fire-Trol is limited to its facts, however. The same court heard Alaska Central and did not limit standing in such a manner. The court wrote,
[Alaska Centrales reliance on cases that entertained . bid protests by contractors that were deprived of an opportunity to present an offer, or to have their offer fairly considered, is inapposite.... Plaintiff’s complaint is not that the [Postal Service] prevented it from participating in a fair competition, but that the [Postal Service] improperly determined that plaintiff was statutorily ineligible to receive an equitable distribution of the mails.
II. Declaratory Relief
Plaintiff requests a declaratory judgment that the Government’s transfer of the contract work to an in-house Interim Government Organization without first resolieiting and performing a public/private cost comparison violates the various sources of law described above. These are (1) title 10 U.S.C. § 2462; (2) 32 C.F.R. Parts 169 and 169a; (3) OMB Circular A-76 (2003); and (4) Executive Order 12,615.
Title 28 U.S.C. § 1491(b)(2) authorizes this court to “award any relief that the court considers proper, including declaratory and injunctive relief ____” Plaintiff insists that we can award declaratory relief pursuant to section 1491(b)(2) even though a declaratory judgement on these facts would have no practical effect on the parties. We cannot issue a declaratory judgment in such circumstances. “ ‘A declaratory judgment is not available as an academic exercise ____’” PGBA, LLC v. United States,
The Government argues that plaintiffs access to declaratory relief in a bid protest matter is limited to those situations in which the protester can meet the test for injunctive relief. Plaintiff directs us to cases in which the court deemed injunctive relief unnecessary or improper, but nonetheless proceeded to award some form of declaratory relief. In each of the eases plaintiff cites, however, the declaratory judgment was more than merely advisory. See, e.g., Keeton Corrections, Inc. v. United States,
III. Injunctive Relief
Plaintiff sought to enjoin the Government’s conversion of its work to an in-house Interim Government Operation until the Defense Logistics Agency had completed the resolicitation process.
The Tucker Act amendments authorize us to “award any relief that the court considers proper, including ... injunctive relief.” 28 U.S.C. § 1491(b)(2). “Injunctive relief is an extraordinary remedy.” Dynacs Eng’g Co. v. United States,
The Federal Circuit held that the Scanwell language was “inapplicable” where the trial court rescinded the Government’s cancellation of a lease that lacked a proper legal basis. Parcel 49C Ltd. P’ship v. United States,
LABAT did not ask this court to award it a contract, though that could have been the result in the circumstances presented. Its petition for an injunction asked that we enjoin the Government from converting proceedings under the contract to an in-house Interim Government Operation until it had met the requirements of OMB Circular A-76 and other applicable statute and regulations. Such procedures require the Government to obtain services from the private sector unless an in-house operation first wins a public/private cost comparison.
To justify injunctive relief LABAT had to show (1) success on the merits; (2) irreparable harm without the relief sought; (3) a balance of hardships in its favor; and (4) a public interest in granting the injunction. PGBA LLC v. United States,
The Government did not violate section 2462 by employing the Interim Government Organization while resoliciting the work. Defendant’s methods of assessing the relative costs of doing the work in-house or extending plaintiffs contract were realistic and fair. Plaintiff did not succeed on the merits of its claim, so an examination of the other standards for injunctive relief is unnecessary. Plaintiff must meet all four criteria. See PGBA
A. Success on the Merits
This court employs the arbitrary and capricious standard of the Administrative Procedures Act in reviewing procurement cases. 28 U.S.C. § 1491(b)(4). The APA excepts agency actions from judicial review where a statute precludes it or where “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a). The Government argues that defendant’s actions are not subject to judicial review because the “sources of law” that plaintiff complains of do not provide meaningful standards for review. See 10 U.S.C. § 2462; Executive Order 12,615; OMB Circular A-76; 32 C.F.R. Parts 169 and 169a.
1. OMB Circular A-76; Commercial Activities Program
We discuss the Circular and the Commercial Activities Program together because the Department of Defense is subject to Circu
The Office of Management and Budget issued a “deviation letter” in the midst of litigation over plaintiffs petition for a temporary restraining order in the district court. The letter purported to exempt the Department of Defense temporarily from the requirements of Circular A-76 and to “allow the [Agency] to create an [Interim Government Operation] ... while the re-competition takes place.” The Government produced this letter during oral arguments on plaintiffs first application for injunctive relief. The OMB expressed uncertainty whether “the provisions of OMB Circular A-76 apply to the creation of an [Interim Government Operation].”
The parties argued whether OMB had the authority to exempt the Agency from Circular A-76 and whether the Circular can serve as the basis for review of agency action. The Government contended that Circular A-76 is a statement of presidential management policy and cannot serve as the basis for a review of agency action. See United States Dep’t of Health and Human Servs. v. Fed. Labor Relations Auth.,
The Circular details the methods by which the Department of Defense must conduct public/private cost comparisons. Parts 169.1 and 169a give effect to the statutory mandate of 10 U.S.C. § 2462 to perform “[r]ealistic and fair cost comparisons” by incorporating the procedures of Circular A-76. See 32 C.F.R. §§ 169.5(c)(5)(iii) and 169a.10. The 1983 version (and the 2003 version) of Circular A-76 did not leave the cost comparison to agency discretion. See Diebold,
The Department of Defense is required to use the procedures established in Circular A-76 only to the extent that Parts 169.1 and 169a of the Commercial Activities Program incorporate them. The Agency could perform realistic and fair cost comparisons outside the circumstances contemplated by Parts 169.1 and 169a using procedures other than those established by Circular A-76. Subsections 169.4(b) and 169a.4(d)
Section 169a.l0 contemplates contract costs becoming unreasonable or performance becoming unsatisfactory and authorizes re-solicitation in such an event. The resolicitation must be “performed in accordance with ... OMB Circular A-76 ... if in-house performance is feasible.” Plaintiff argued that section 169a.l0 implies an obligation on the Government not to allow its contract to expire while completing the resolicitation. Defendant pointed out that this section does not apply because the contract was not terminated for default or otherwise because of unsatisfactory performance.
Section 169a.l0 does not speak to the situation at hand. It requires the Government to let the contract expire when performance is unsatisfactory or prices have become unreasonable and the Government has prevailed in a Circular A-76 cost comparison. That does not mean that other situations might not justify conversion to in-house performance. We do not rule that the Agency always has discretion whether to resolicit the work in these circumstances, but only that the regulations do not address a situation in which an Agency component does not complete resolicitation before the expiration of an existing contract.
2. 10 U.S.C. § 2462
Section 2462 is similar to some of the regulations discussed in that it requires the Secretary of Defense to obtain supplies and services from sources in the private sector “if such a source can provide such supply or service to the Department at a cost that is lower ... than the cost at which the Department can provide the same supply or service.” 10 U.S.C. § 2462(a). It also calls for “[rjealistic and fair cost comparisons” with available sources in the private sector. 10 U.S.C. § 2462(b).
Section 2462 permits substantial agency discretion, but this law presents meaningful standards against which to judge the Agency’s actions. See Heckler v. Chaney,
Plaintiff argues that section 2462 prohibits the Agency from performing work in-house unless the in-house organization prevails in a Circular A-76 cost comparison. Defendant contends that the law is not applicable to these facts, particularly in light of the OMB deviation letter. Also, the Government does not intend to perform the work permanently. The statute does not distinguish between temporary in-house performance and in-house performance conducted after winning a public/private cost comparison. If the Government intends to perform the work in-house for any period, it must determine that the Agency can provide the service at a lower cost. Conversion to in-house performance without a realistic and fair cost comparison would violate subsection 2462(b).
The contracting officer chose to install the Interim Government Operation because not enough time remained to complete a full or streamlined resolicitation after the Agency decided that it did not wish to exercise LA-BAT’s option. The work could not cease. These facts may not justify a conversion to in-house performance without compliance with § 2462, but the Agency made a reasonable effort to comply. It compared LABAT’s offer to perform the work for a fixed fee of $425,000 per month with the in-house estimate of $365,000. The Agency did not perform a full cost comparison, but we found the Agency’s comparisons of plaintiffs charges with its in-house operation to be “[idealistic
We considered whether the Agency based its determination on the relevant factors and whether it committed a clear error of judgment in the process. “If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.” Honeywell, Inc. v. United States,
The Agency used the same software that it uses regularly to perform cost comparisons. It considered personnel costs, supply and material costs, overhead, and other “specifically-attributable costs” to reach the in-house estimate against which to compare LABAT’s offer of $425,000 per month. This yielded a twelve-month total cost of $4,835,696. The Agency discounted overhead costs because they would have been attributable to the Government regardless of who performed the contract work. The cost for twelve months of in-house performance was $4,385,706, or $365,475.50 per month.
Section 2462 provides examples of the costs that an Agency should consider in making a “[rjealistie and fair cost comparison.” These include the costs of quality assurance, technical monitoring of performance, liability insurance, and employee retirement and disability benefits. 10 U.S.C. § 2462(b). The comparison data supplied to the court shows that the Agency considered these factors. The cost comparison that the Agency performed did not comply with OMB Circular A-76 or with Parts 169.1 and 169a, but the comparison did comply with the section 2462 mandate to use a realistic and fair cost comparison to determine whether the Government could perform the work at lower cost.
3. Executive Order 12,615
Executive Order 12,615 provides, “[t]he head of each Executive department and agency shall, to the extent permitted by law ... [ejnsure that new Federal Government requirements for commercial activities are provided by private industry, except where statute or national security requires government performance or where private industry costs are unreasonable 52 Fed.Reg. 44,853 (Nov. 19, 1987). This language does not provide the court with a meaningful standard for review. Section 5 of the Executive Order states that “[njothing in this Order shall be construed to confer a private right of action ..., or to add in any way to applicable procurement procedures required by existing law.” Id. at 44,854. Thus, the Order should be viewed as a directive or memorandum within the Executive Branch.
B. Irreparable Harm
The Agency’s takeover of the contract caused plaintiff to lose its status as the incumbent contractor. When the work is re-solicited LABAT will have experience, but will not have all the benefits of incumbency. The Government allegedly recruited plaintiffs experienced employees to assist with the in-house agency contract work. Plaintiff likely will lose those employees. Plaintiff complained that it would suffer a weakened relationship with its labor unions because of the Government’s solicitation of plaintiffs employees at higher, though temporary, wages.
Defendant made references to delays in transporting equipment and other goods that were important to the war effort, but did not explain why such delays would occur if plaintiff stayed on the job. This court has broad authority to consider national defense in areas of its jurisdiction, yet the .Government did not argue this case on the basis of its impact on national defense. The statute and its implementing regulations provide exemptions for work that is best accomplished by
C. Balance of Hardships
Balancing the hardships requires consideration of the harms that injunctive relief would impose on the Government. See Over-street Elec. Co. v. United States,
The Government argued that granting plaintiff injunctive relief would force it to violate Federal Acquisition Regulations. See 48 C.F.R. § 17.207(f) (requiring the contracting officer to insure that the cost of an option is specified or reasonably determinable from the terms of the contract). The Government modified LABAT’s initial contract to include the add-work but then spent nearly three years negotiating its price; arguably, the price of the option thus would have been indeterminate. The FAR also calls upon the contracting officer to determine that “exercise of the option is the most advantageous method of fulfilling the Government’s need, price and other factors ... considered.” 48 C.F.R. § 17.207(c)(3). Such factors include “the Government’s need for continuity of operations and potential costs of disrupting operations.” 48 C.F.R. § 17.207(e). These sections present countervailing concerns that the contracting officer must take into consideration.
Injunctive relief would not have put national security at risk. The CDA provides a process for fair resolution of the add-work issue. The Govérnment’s conversion to an in-house operation subjected LABAT to transition costs that it would not have incurred as an incumbent, and it put LABAT’s labor resources at risk. The balance of hardships tipped in LABAT’s favor.
D. The Public Interest
Plaintiff argues that the public has a strong interest in insuring that public officials obey the law. “It is well established that there is an overriding public interest in preserving the integrity of the federal procurement process by requiring government officials to follow procurement statutes and regulations.” CW Gov’t Travel, Inc. v. United States,
CONCLUSION
Plaintiff asked that we declare the Government to be in violation of a federal statute and various procurement rules and regulations. Such a ruling would have no effect on the parties and would be merely an advisory opinion. We cannot grant injunctive relief because plaintiff did not succeed on the merits for the reasons stated. The balance of hardships and the balance of harms tip in plaintiffs favor, but the public interest is not served by interfering with the Defense Logistic Agency’s procurement process so long as the Agency did not violate applicable laws and regulations.
Executive Order 12,615 is not subject to judicial review. OMB Circular A-76 and
Defendant’s Motion to Dismiss is GRANTED. Plaintiffs Application for a Temporary Restraining Order or Preliminary Injunction is DENIED. The Clerk of Court will dismiss plaintiffs Complaint. No costs.
Notes
. The government party to the contract was actually the Defense Distribution Center, a division of the Defense Logistics Agency. The Defense Distribution Center manages the Defense Distribution Depot at Cherry Point and other distribution facilities. The Defense Distribution Center had authority to administer and modify the contract.
. A Circular A-76 procurement is a two-stage process whereby the Government solicits bids from private contractors to find a "best value offeror,” then compares that with the Government's in-house bid that is referred to as the "most efficient organization." The bids are adjusted by differentials to account for transition costs, and the contract is awarded to the least expensive of the two.
. The Forest Service’s decision in Fire-Trol had the consequence of foreclosing plaintiff's ability to meet the Government's needs. In this case a similar situation might occur if the Defense Logistics Agency concluded that work being performed by LABAT had become too sensitive to be performed by a private party, and no longer was a "commercial activity." Such a determination, that the work were an "inherently governmental activity,” would require assumption of the work
. LABAT also requested that we order defendant to perform a public/private cost comparison, but this issue is moot. The Agency agreed to procure the work from the private sector in exchange for the temporary OMB “deviation letter” that authorized in-house performance while DLA conducts the resolicitation.
. The parties have conceded that an injunction would leave the Government with no option but to contract with LABAT, whether by exercising its option or by issuing a series of temporary letter contracts. The Defense Logistics Agency may need up to two years to resolicit the work. The Agency created a situation in which an injunction would leave few options because it did not begin resolicitation sooner.
. A preliminary injunction would have resolved this dispute with finality, so LABAT had to succeed on the merits rather than merely demonstrating a likelihood of success. See PGBA, LLC v. United States,
. The 2003 version lists as its statutory authority 31 U.S.C. § 501, enacted as part of the Federal Activities Inventory Reform Act of 1998, Pub.L. No. 105-270, 112 Stat. 2382; 31 U.S.C. § 1111; and 41 U.S.C. § 405, enacted as part of the Office of Federal Procurement Policy Act, Pub.L. No. 93-400, 88 Stat. 796 (Aug. 30, 1974).
. Parts 169.1 and 169a overlap significantly; many subsections of 32 C.F.R. §§ 169.4 and 169a.4 are identical.
. Subsections 169.4(d) and 169a.4(c), addressing reliance on the commercial sector, directs the Department to "rely on commercially available sources to provide commercial products and services ____ DoD components shall not consider ... conversion to in-house [performance] ... if the products or services can be procured more economically from commercial sources.”
. Plaintiff's counsel argued that a twelve percent overhead cost must be added to the cost of in-house performance in a public/private cost comparison. He was referring to a requirement imposed by OMB Circular A-76. We have found Circular A-76 inapplicable. Subsection 2462(b) requires only that the Government realistically and fairly consider overhead costs. In this case, discounting the overhead costs is realistic and fair because the Government would bear the cost regardless of who performed the work.
. The Government could have exercised the option and unilaterally modified the contract to include the add-work, just as it did during the initial contract period. LABAT did not object to performing the add-work, but only to the price for which it was to be performed. Disputes over the price of add-work could have been resolved under the Contract Disputes Act.