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New
Task Order Scope Challenge
In addition to challenging the agency’s corrective action,
the protester argues that task order TO‑R015, exceeds the
scope of Berry’s underlying TAS IDIQ contract. In this
regard, the protester contends that rotary‑wing services
are not authorized under Berry’s IDIQ contract, and that
Berry is using both an unauthorized subcontractor and an
unauthorized aircraft to perform the rotary-wing services
contemplated by the task order. AR, Tab 4, Protester’s
Dismissal Request Response, Sept. 12, 2017, at 9;
Protester’s Comments at 2-5. In response, the agency
points out that Berry’s TAS IDIQ contract requires Berry
to perform rotary‑wing services and also provides for the
possibility of adding or removing subcontractors and
aircraft.
Under the Federal Acquisition and Streamlining Act of
1994, as modified by the National Defense Authorization
Act of Fiscal Year 2017, our Office is authorized to hear
protests of task orders that are issued under
multiple-award contracts established within the Department
of Defense (or protests of the solicitations for those
task orders) where the task order is valued in excess of
$25 million, or where the protester asserts that the task
order increases the scope, period, or maximum value of the
contract under which the order is issued. 10 U.S.C. §
2304c(e); California Indus. Facilities Res., Inc., d/b/a/
CAMSS Shelters, B‑406146, Feb. 22, 2012, 2012 CPD ¶ 75 at
2. Task orders that are outside the scope of the
underlying multiple‑award contract are subject to the
statutory requirement for full and open competition set
forth in the Competition in Contracting Act of 1984 (CICA),
absent a valid determination that the work is appropriate
for procurement on a sole-source basis or with limited
competition. 10 U.S.C. § 2305(a)(1)(A)(i) (2006); DynCorp
Int’l LLC, B‑402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6.
When a protester alleges that the issuance of a task or
delivery order under a multiple‑award contract is beyond
the scope of the contract, we analyze the protest in
essentially the same manner as those in which the
protester argues that a contract modification is outside
the scope of the underlying contract. DynCorp Int’l LLC,
supra. In determining whether a task or delivery order is
outside the scope of the underlying contract, and thus
falls within CICA’s competition requirement, our Office
examines whether the order is materially different from
the original contract, as reasonably interpreted. Evidence
of a material difference is found by reviewing the
circumstances attending the original procurement; any
changes in the type of work, performance period, and costs
between the contract as awarded and the order as issued;
and whether the original solicitation effectively advised
offerors of the potential for the type of orders issued.
Symetrics Indus., Inc., B-289606, Apr. 8, 2002, 2002 CPD ¶
65 at 5. In other words, the inquiry is whether the order
is one which potential offerors reasonably would have
anticipated.
Here, Erickson’s allegations that task order TO-R015
exceeds the scope of Berry’s underlying IDIQ contract are
without merit. First, despite the protester’s contention
that Berry is not permitted to provide rotary-wing
services under its IDIQ contract, our review of the record
confirms otherwise. In fact, Berry’s IDIQ contract
contains direct line‑item pricing for the provision of
rotary-wing support. AR, Tab 6, Berry IDIQ, at 3‑4, 7‑10,
13‑16, 19‑22, 25‑28, 31‑32. Additionally, the contract
expressly requires Berry to be capable of providing PR,
CASVAC, and airdrop services “to include rotary-wing and
fixed-wing operations.” Id. at 56. The terms of Berry’s
contract also mandate that Berry provide certain
rotary-wing aircraft that meet certain minimum
specifications and the aircraft identification list that
is included in Berry’s IDIQ contract contains various
rotary‑wing aircraft that are approved for use. Id. at
72‑73, 94.
Next, the protester argues that task order TO-R015 exceeds
the scope of Berry’s underlying IDIQ contract because
Berry is using an unauthorized subcontractor and
unauthorized aircraft to perform rotary‑wing services. In
support of this allegation, Erickson asserts that Berry’s
rotary‑wing subcontractor is ineligible to provide support
to DoD and that the rotary-wing aircraft Berry proposes to
use to perform task order TO‑R015 is not on the list of
approved aircraft included in Berry’s IDIQ contract. The
protester also asserts that the subcontractor approval
process is flawed. In response, the agency asserts that
Berry’s rotary-wing subcontractor was approved to provide
support to DoD on May 31, 2017, and the agency provided
documentation to establish that Berry’s TAS IDIQ contract
was modified to allow for use of the rotary-wing aircraft
in question. COS at 11, AR, Tab 9, CARB Approval Air
Center E-mail, at 1; Tab 10, Berry IDIQ Contract
Modification 1, at 4.
Even though the agency has also provided documentation to
establish that Berry’s rotary-wing subcontractor and
aircraft were approved for use before the task order was
issued, COS at 11, AR, Tab 9, CARB Approval Air Center
E-mail, at 1; Tab 10, Berry IDIQ Contract Modification 1,
at 4, we dismiss these allegations because we generally do
not review matters of contract administration. Bid Protest
Regulations, 4 C.F.R. § 21.5(a). These allegations do not
fall into any of the exceptions that would allow our
Office to consider them. See Sprint Communications Co.,
L.P., B-271495, April 26, 1996, 96-1 CPD ¶ 211 at 4. As
discussed above, the terms of Berry’s IDIQ contract
require Berry to provide rotary-wing services, and provide
for the addition of subcontractors after initial award.
AR, Tab 6, Berry IDIQ, at 3‑4, 7‑10, 13‑16, 19‑22, 25‑28,
31‑32, 56, 72‑73, 81-82. Here, the question of whether
Berry’s subcontractor was properly added to Berry’s IDIQ
contract, and whether certain rotary‑wing aircraft are
approved for use, are matters of contract administration.
We also note that “the determination of whether an air
carrier meets or exceeds [evaluation requirements], is a
matter within the sole discretion of the DOD Air Carrier
Survey and Analysis Office and the CARB, subject to
[certain] statutory minimums.” 32 C.F.R. § 861.4(e).
(Erickson Helicopters, Inc.
B-415176.3, B-415176.5: Dec 11, 2017)
The sole basis of protest here is
whether TO 76 falls outside the scope of R3’s ID/IQ contract.
TMG contends that some of the training provided by R3 under TO
76 is not included in the PWS. For the reasons below, we sustain
the protest.
Our decisions in this area are well-settled. Outside of
exceptions not relevant here, CICA requires agencies to obtain
“full and open competition” in procurement through the use of
competitive procedures. See 10 U.S.C. § 2304(a). Where an agency
issues a task order for work that is beyond the scope of the
contract originally awarded, the agency violates CICA. This is
the case because the agency has subverted competition by
awarding without competition work that would otherwise be
subject to the statutory requirement for full and open
competition. Makro Janitorial Servs., Inc., B-282690, Aug. 18,
1999, 99-2 CPD ¶ 39 at 3 (sustaining protest where contract
modification and task order were beyond the scope of the
underlying ID/IQ contract).
In determining whether a task order is beyond the scope of the
contract, GAO looks to whether there is a material difference
between the task order and that contract. Id.; see also DynCorp
Int’l LLC, B-402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6. To
determine whether such a material difference exists, GAO reviews
the circumstances attending the procurement that was conducted;
examines any changes in the type of work, performance period,
and costs between the contract as awarded and as modified by the
task order; and considers whether the original contract
solicitation adequately advised offerors of the potential for
the type of task order issued. Makro Janitorial Servs., supra,
at 3. See also DynCorp, supra (sustaining protest where task
order for counterinsurgency support was outside the scope of a
contract for counter-narcoterrorism training); Data
Transformation Corp., B‑274629, Dec. 19, 1996, 97-1 CPD ¶ 10 at
6 (sustaining protest where task order for debt collection
intake was outside the scope of a litigation support services
contract); Indian & Native Am. Emp’t & Training Coal., B‑216421,
Apr. 16, 1985, 85‑1 CPD ¶ 432 at 3 (sustaining protest where
task order for training work was outside the scope of a contract
for financial support services). “The overall inquiry is whether
the task order is of a nature that potential offerors would
reasonably have anticipated.” DynCorp, supra, at 6-7.
The Air Force contends that the task order issued to R3 is
within the PWS’ scope of work because the scope of work for both
is the same. Memorandum of Law (MOL) at 5 (TO 76 “is for the
exact same services called for in R3’s IDIQ contract’s PWS”). As
to the scope of the PWS, the agency states that it “did not
contemplate R3 providing instructors and teaching training
courses.” COSF at 8. See also AR, Tab 10, First Decl. of
Training Manager, Oct. 5, 2016, at 2 (“I want to state clearly:
R3 personnel will not provide instructor services at the Silver
Flag Exercise Site.”); AR, Tab 17, Second Decl. of Training
Manager, Nov. 21, 2016, at 2 (“Under R3’s contract, those
employees are providing EOD support services, not training, as
they had performed under the TMG contract.”).
Although our decisions instruct us to compare the PWS for the
task order against the underlying PWS, that approach is not
useful here. Other than the request for 13 FTEs based on
historical manning, there is no documentation of the specific
services R3 was requested to perform on TO 76. Therefore, our
review is based on the two documents provided by the agency
relating to contract performance, R3’s monthly progress reports
for September and October of this year.
The R3 September monthly progress report provides that R3:
* * * * *
AR, Tab 18, R3 September Monthly
Progress Report, at 13.
The R3 October monthly progress
report states that R3:
* * * * *
-
Provided explosive safety training
to civil engineer equipment personnel; ensured compliance with
AFMAN 91-201, “Explosives Safety Standards”
-
Conducted USAF EOD Chemical,
Biological, Radiological and Nuclear (CBRN) capability training
for the Flight;
-
Implemented and made a full
transition to the Roboteam Micro Tactical Ground Robot (MTGR®)
platform; newest robot in the USAF inventory added to training
* * * * *
AR, Tab 19, R3 October Monthly
Progress Report, at 13.
Under the PWS, R3 is only
permitted to provide training to Tyndall permanent staff on
“demolition and handling of explosives in accordance with
[various] directives” and “issue and destruction of materials.”
PWS § 1.2.1.8. With regard to the training described in the
September progress report, “[p]rovid[ing explosive safety
training to civil engineer equipment personnel” falls within the
PWS. In contrast, “[p]rovid[ing] controlled area training to
Flight personnel,” on its face, does not appear to fall within
the scope of the underlying PWS. In addition, the record
contains no documents from the training, such as slides or an
outline, which might be useful in assessing the scope of the
work provided here.
As for the training described in the October progress report,
the explosive safety training described in the document again
appears to fall within the scope of the PWS. However, as to the
“training and refresher courses for Flight cadre,” and the
transitioning to the “Roboteam Micro Tactical Ground Robot,” the
record is inconclusive. Furthermore, the “chemical, biological,
radiological and nuclear capability training” appears to fall
outside of the scope of the PWS. Finally, the medical training
mannequin, which could have been part of the “training and
refresher courses,” also appears to fall outside of the PWS,
which is limited to demolition, handling, and destruction of
explosive material. On the limited record before us, it appears
that some of the training purchased here is outside of the scope
of R3’s contract.
Due to the absence of an independent PWS and the lack of
documents that might have been prepared contemporaneously, our
Office asked the agency “to provide additional documentation as
to how it calculated the number of required personnel and priced
the task order, as well as the information communicated to R3
about what tasks were to be performed and the skill sets of the
relevant personnel.” GAO Email to Parties, Nov. 18, 2016. The
agency did not provide any contemporaneous documentation.
Again, on November 29, the agency was requested to provide
“[a]ny documentation--e.g., slides, schedules, roster of
trainers--related to the training listed in the monthly progress
reports[.]” GAO Email to Parties, Nov. 29, 2016. Again, no
relevant documents were provided. In each instance, however, the
agency submitted a supplemental declaration from the training
manger, who is “responsible for EOD contingency training, and
provide[s] executive management, direction, coordination,
planning, and supervision of EOD pre-deployment training.” AR,
Tab 10, First Decl. of Training Manager, at 1. He is also the
contracting officer’s representative for the R3 contract. Id.
However, the training manager explains only that he does not
know whether documents related to R3’s training exist. AR, Tab
108, Third Decl. of Training Manager, Dec. 1, 2016, at 3 (“I
have no personal knowledge of such materials.”). The training
manager’s lack of knowledge regarding the existence of relevant
materials is inconsistent with his assertion that the training
provided by R3 is within the scope of the PWS. See, e.g., AR,
Tab 108, Third Decl. of Training Manager, Dec. 1, 2016.
GAO has sustained protests in other contexts where the
documentation is inadequate to permit a reasonable conclusion
based on the record. For example, we will sustain a protest when
the documentation in the record fails to support the agency’s
judgment in evaluating proposals. See LIS, Inc., B-400646.2,
B-400646.3, Mar. 25, 2009, 2010 CPD ¶ 5 at 7. We will also
sustain the protest where “the agency’s unwillingness or
inability to establish and document” a relevant portion of the
record “precludes a conclusion” that an agency’s decision to
cancel a procurement was “reasonable and appropriate.” See
Superlative Techs., Inc., B‑310489.4, June 3, 2008, 2008 CPD ¶
123 at 12-13. Here, where the record is so limited that we
cannot conclude that a task order was within the scope of the
underlying contract, and where the limited available evidence
suggests it was not, we will sustain the protest.
In short, the record does not adequately address what specific
services R3 was requested to perform under TO 76. The limited
documentation provided indicates that some of the training is
outside of the scope of R3’s contract. Furthermore, agency
representatives have either denied knowledge of any relevant
documents, or failed to respond to document requests. On this
basis, we sustain the protest because we cannot conclude that TO
76 was within the scope of the R3 contract. (Threat
Management Group, LLC B-413729: Dec 21, 2016)
BAHES’s Challenge to the Task
Order Modification
BAHES argues that the modification materially changed the task
order and undermined the basis on which offerors prepared their
proposals. The protester contends that the Army should have
delayed the award and amended or cancelled the [request for task
execution plan] RTEP, because the contracting officer knew (by
at least December 10, if not November 25) that the required
services may be subject to the [Service Contract Act] SCA. BAHES
complains that the modification allowed DRS to substantially
increase its proposed labor costs, and the protester challenges
the Army’s cost realism analysis in that regard. As discussed
below, we find the modification unobjectionable.
Our Office will generally not review protests of allegedly
improper contract modifications because such matters are related
to contract administration and are beyond the scope of our bid
protest function. Bid Protest Regulations, 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. Even if a
contract modification arguably is significant, absent a showing
that the modification is beyond the scope of the original
contract (or in this case, task order) or awarded with the
intent to modify it after award, we view the modification as
matter of contract administration. See Zafer Constr. Co., et
al., B-295903, B-295903.2, May 9, 2005, 2005 CPD ¶ 87 at 6-7.
In determining whether a modification is beyond the scope of the
contract, and thereby triggers applicable competition
requirements, we look to whether there is a material difference
between the modified order and the order that was originally
awarded. See MCI Telecomms. Corp., B-276659.2, Sept. 29, 1997,
97-2 CPD ¶ 90 at 7. Evidence of a material difference between
the modification and the original order is found by examining
any changes in the type of work, performance period, and costs
between the order as awarded and as modified. See Atlantic Coast
Contracting, Inc., B-288969.4, June 21, 2002, 2002 CPD ¶ 104 at
4. We also consider whether the solicitation for the original
order adequately advised offerors of the potential for the type
of change found in the modification, and thus whether the
modification could have changed the field of competition. See
DOR Biodefense, Inc.; Emergent BioSolutions, supra.
Contrary to BAHES’s arguments, we find that the Army’s
modification of DRS’s task order did not materially change the
task order or the field of competition. As an initial matter, we
note that the protester does not allege that the modification
changed the type of work or performance period. Indeed, the RTEP,
as noted above, specified an exact labor mix and fixed
hours--which the modification did not change. Compare RTEP,
attach. 2, Manpower Requirements with AR, Tab 9e, Task Order
Modification. Rather, BAHES’s protest is premised almost
excusively on the increase in DRS’s proposed labor costs that
will result from the modification. See Protester’s Comments at
12-13 (Offerors were required to propose the same number of
hours, labor categories, material estimate and travel estimate,
and labor rates were one of the few variables that the offeror
could control). Where, as here, it is clear that the nature and
purpose of the task order has not changed, a substantial price
increase alone does not establish that the modification is
beyond the scope of the order. See Atlantic Coast Contracting,
Inc., supra.
In our view, the RTEP adequately advised offerors of the
potential for this type of change, and offerors could reasonably
anticipate that the task order (as well as their underlying IDIQ
contracts) could be modified to redesignate labor categories as
subject to the SCA. In fact, the solicitation put the burden on
the offerors to make their own SCA determination.
Moreover, notwithstanding the fact that the post-award
modification may have been significant, in the absence of
evidence that the contract was awarded with the intent to modify
it, we will not question the modification. See Zafer, supra.
Here, there is no indication in the record that the Army awarded
the task order to DRS with the intention of modifying it after
award or otherwise acted unreasonably in not amending the
solicitation prior to award.
Prior to issuing the task order, the Army concluded that the
labor categories were SCA-exempt. In reaching this conclusion,
the contracting officer considered that: (1) the previous task
order for similar work was not subject to SCA wage
determinations; (2) none of the proposals indicated that the
labor categories were subject to the SCA; (3) none of the
offerors, including BAHES, protested or questioned the
applicability of the SCA prior to receipt of proposals; and (4)
DOL was aware of the issue based on the IAMAW complaint, but had
not issued a decision in response to the complaint or issued an
applicable wage determination. AR at 16-17. The contracting
officer decided not to amend the RTEP, but to make award, based
on the information available to her at that time. Id. at 16.
Under these circumstances, we agree with the Army that the
contracting officer’s decision to make award did not demonstrate
an intent to modify the contract post-award to redesignate labor
categories as subject to the SCA.
While BAHES argues that the Army failed to diligently assess
whether the labor categories were subject to the SCA, we find
that the contracting officer’s pre-award decision regarding the
applicability of the SCA was reasonable. The regulations
implementing the SCA contemplate an initial determination by the
procuring agency as to whether the SCA is applicable to a
particular procurement. Northeast Military Sales, Inc., et al.,
B-291384, Nov. 20, 2002, 2002 CPD ¶ 195 at 3. If the agency
believes that a proposed contract may be subject to the SCA, the
agency is required to notify DOL of the agency’s intent to make
a service contract so that DOL can provide the appropriate wage
determination. 29 C.F.R. § 4.4. If there is any question or
doubt as to the application of the SCA to a particular
procurement, the agency is required to obtain DOL’s views. FAR §
22.1003-7. However, where a procuring agency does not believe
that a proposed contract is subject to the SCA, there is no duty
to include SCA wage provisions in the solicitation or notify
DOL. Tenavision, Inc., B-231453, Aug. 8, 1988, 88-2 CPD ¶ 114 at
2. Our review of a contracting agency’s determination as to the
applicability of the SCA is limited to deciding whether the
contracting agency’s determination was reasonable at the time it
was made. OAO Corp., B-211803, July 17, 1984, 84-2 CPD ¶ 54 at
7.
Here, there is nothing in the record that calls into question
the contracting officer’s decision, which was based upon all the
information she had at the time. Rather, we find that it was
incumbent on BAHES to have raised its SCA concerns prior to
award. While BAHES suggests that the Army should have cancelled
the RTEP as soon as the agency learned on November 25 “that
union labor was performing some of the work under the task
order,” the Army, in our view, was not required to speculate
about the possibility that four subcontractor employees, at one
of the five (or more) performance sites, might possibly increase
labor costs in the future. See, e.g., Textron Marine Sys.,
B-255580.3, Aug. 2, 1994, 94-2 CPD ¶ 63 at 28 (agency not
required to speculate whether an awardee would hire a
substantial number of incumbent employees that might eventually
obtain wage concessions that could raise the awardee’s labor
costs). In fact, we have not imposed an absolute requirement for
resolicitation under similar circumstances, because contracting
agencies have a legitimate need to proceed with award in an
orderly fashion and an incumbent contractor could manipulate the
timing of labor negotiations in order to force an agency to
resolicit its requirements. See, e.g., KCA Corp., B-236260.2,
July 2, 1990, 90-2 CPD ¶ 1 at 4-5 (explaining that a rigid rule
would place incumbent contractors in a position to delay
contract award for their own benefit since they control the
timing of submission of revised collective bargaining
agreements); The Fred B. DeBra Co., B-250395.2, Dec. 3, 1992,
93-1 CPD ¶ 52 at 17-18, citing KCA Corp. (no absolute
requirement that all wage determinations received prior to award
be incorporated into solicitations and offerors be provided the
opportunity to resubmit offerors).
Under the terms of the RTEP, as described above, offerors were
responsible for complying with the SCA. RTEP at 6-7.
Furthermore, under the terms of BAHES’s underlying IDIQ
contract, it was incumbent on BAHES to comply with the SCA and
request that the contracting officer seek wage determinations if
necessary. See BAHES R2-3G IDIQ Contract at 11, 58, 79. The IDIQ
contract also refers offerors to the DOL Wage and Hour Division
for assistance in determining SCA applicability. Id. at 58.
DOL’s regulations implementing the SCA provide a number of
mechanisms for requesting official rulings and interpretations
regarding the application of the Act. 29 C.F.R. §§ 4.101(a),
(g); 4.191(a); see Northeast Military Sales, Inc., et al.,
supra, at 3-4.
In this respect, BAHES knew, or should have known (months before
the agency and DRS knew) that some of its proposed labor force
was actively disputing its SCA-exempt status. The record
indicates--and the protester does not dispute--that in September
2014, a number of incumbent RPM instructors voted to unionize
and began to bargain collectively for SCA wages, as discussed
above. AR, Tab 12a.1, Army/IAMAW Emails, at 16-18; see
Protester’s Comments at 5. The record also indicates that,
within days of the due date for submission of proposals, RPM
sought legal counsel on whether the required services were SCA-exempt.
See AR, Tab 12B, White Paper. The agency points out that under
these circumstances, BAHES could have, prior to competing for
the task order, questioned the applicability of the SCA to the
labor categories at issue, and/or protested the RTEP’s omission
of relevant wage determinations. See AR at 15-17. We agree, and
find that BAHES was in the best, and earliest, position to
resolve the question of SCA applicability, but did not avail
itself of various opportunities to do so. See, e.g., Northeast
Military Sales, Inc., et al., supra (DOL has the primary
responsibility for interpreting and administering the SCA;
protester should have availed itself of mechanisms for
requesting DOL’s review of a wage determination’s applicability
to a particular procurement).
(paragraph deleted)
In sum, based upon the record, we
find that the modification was not outside the scope of the
underlying task order and the agency did not issue the task
order with the intent of modifying after issuance of the order.
Accordingly, we view the modification at issue as purely as
matter of contract administration within the sound discretion of
the agency. Moreover, as we discuss above, the contracting
officer reasonably determined before award that the SCA did not
apply to the labor categories in question, and in any event the
protester was not prejudiced by the modification. We deny this
basis of protest. (Booz Allen Hamilton Engineering
Services, LLC B-411065: May 1, 2015) (pdf)
In determining whether a task order is beyond the scope of the
contract, GAO and the courts look to whether there is a material
difference between the task order and that contract. DynCorp
Int’l LLC, B-402349, Mar. 15, 2010, 2010 CPD ¶ 59 at 6; MCI
Telecomms. Corp., B-276659.2, Sept. 29, 1997, 97-2 CPD ¶ 90 at
7; see also AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201,
1204 (1993); CCL, Inc., 39 Fed. Cl. 180, 191-92 (1997). Evidence
of such a material difference is found by reviewing the
circumstances attending the procurement that was conducted;
examining any changes in the type of work, performance period,
and costs between the contract as awarded and as modified by the
task order; and considering whether the original contract
solicitation adequately advised offerors of the potential for
the type of task order issued. See Anteon Corp., B-293523,
B-293523.2, Mar. 29, 2004, 2004 CPD ¶ 51 at 5; Data
Transformation Corp., B-274629, Dec. 19, 1996, 97-1 CPD ¶ 10 at
6. The overall inquiry is whether the task order is of a nature
that potential offerors would reasonably have anticipated.
Anteon Corp., supra, at 5.
Cornische first contends that issuing this cost-reimbursement
order two days before the end of the contract performance period
places the order outside the scope of the contract, such that
the order effectively constitutes a new procurement. See Protest
at 3; Comments at 2. We disagree. The contract expressly
provides for the issuance of cost-reimbursement orders through
September 30, 2012--the contract expiration date. See AR, Tab F,
Contract -0130, at 3, 35; see also Tab G, Contract -0130,
attach. 1, SOW, at 1. In this regard, the Federal Acquisition
Regulation (FAR) provides that orders be issued within the
contract’s performance period, see FAR § 16.505(a)(2), which is
the case here. See also Exide Corp., B-276988, B-276988.2, Aug.
18, 1997, 97-2 CPD ¶ 51 at 5 (order running more than 1 year
beyond contract expiration date is within contract scope).
Although Cornische apparently believes that only fixed-price
orders can be issued up to the last day of the contract’s
performance period, see Comments at 2, neither the contract nor
the FAR distinguish between orders placed on a fixed-price or
cost-reimbursement basis with respect to the timing of when
orders are issued.
Cornische also argues that SES’s order is not within the scope
of the firm’s underlying contract because the November 2011 J&A,
which increased the maximum value of the contract, does not
justify the issuance of a 12-month order and does not
specifically state that the maximum value was increased to allow
for Mi-17 overhauls. Protest at 4; Comments at 3, 6-9. In this
regard, Cornische argues that the Army’s J&A provided that work
under the increased contract value would be complete in time for
the LSF facility to be made available to the winner of the
agency’s recompetition of this requirement. Comments at 3.
Cornische’s arguments reflect a fundamental misunderstanding of
the 2011 J&A, the purpose of which was to increase the maximum
value of the LSF contract, and did not modify or otherwise
restrict the scope of work under the contract. See AR, Tab M,
2011 J&A, at 4. As noted above, determining whether a task order
is beyond the scope of the underlying contract is based on
whether there is a material difference between the task order
and that contract--not the J&A. See e.g., DynCorp Int’l LLC,
supra. Moreover, the Army’s justification specifically
recognized that support for non-standard rotary wing aircraft,
such as the Mi-17, for which there were no available original
equipment manufacturers in the continental United States, was
included within the scope of the LSF contract. See AR, Tab M,
2011 J&A, at 4. We also find no merit to Cornische’s contention
that the J&A required that work ordered under the contract must
be completed in time for the LSF facility to be available to the
winner of the agency’s recompetition. The justification actually
states that “[i]t is expected that the work will be completed to
allow the hangar to be included in the competitions for orders
under the follow-on-contract.” Id. at 8.
Cornische also argues that SES’s order is outside the scope of
the firm’s contract, because SES will perform the overhaul
services in a facility in the Czech Republic. Cornische contends
that RFP, as amended, limited the place of performance to
Alabama. Protest at 4. For example, Cornische identifies the
following language in the amendments:
Off-site is other than at the
contractor[’]s facility or Redstone Arsenal. The work
contemplated under this contract is anticipated to be
performed at two sites. Those two sites are the hangar
facility at Redstone Arsenal and the contractor’s facility
located within reasonable commuting distance of Redstone
Arsenal.
Comments, Attach. 1, RFP Amend. 4,
Answer to Question No. 71.
[O]ff-site work isn’t significant
enough for the Government to request contractors to develop
separate off-site [labor] rates.
Id., Question No. 72 citing Answer
to Question No. 22.
We do not agree that the solicitation, as amended, or that the
contract as awarded, limited performance of orders under the
contract to Alabama or the continental United States. The SOW,
as provided in the RFP and included in the contract, states that
the contractor would be required to “[p]erform modification and
repair on designated aircraft and on components at locations in
and outside the continental United States.” See AR, Tab D, SOW,
at 2. Although RFP amendment 4 informed offerors that the agency
anticipated that the work would be performed on-site, the
amendment also stated that off-site work would not be
“significant enough” to provide off-site labor rates, thus
indicating the some off-site work could be performed. We find
that, rather than stating that no off-site contract performance
would occur, the amendment confirmed that it was the
government’s intention to establish one labor rate or overhead
pool for both on-site and off-site contract performance. See
Comments, Attach. 1, RFP Amend. 4, Question and Answer No. 74.
To the extent that Cornische argues that SES’s order provides
for off-site work that is more significant than was
contemplated, we note that the value of the order is $45.6
million dollars, or 11 percent of the contract value as awarded,
and less than 3 percent of the cumulative $1.66 billion maximum
value of the LSF contract. See Techno-Sciences, Inc.,
B-277260.3, May 13, 1998, 98-1 CPD ¶ 138 at 8 (task order valued
at more than 9 percent of the contract value does not constitute
an out-of-scope modification of the contract). (Cornische
Aviation & Maintenance, Ltd., B-408065, B-408065.2, Jun 7,
2013) (pdf)
Cygnus argues that the task orders issued to Kelly Services for
scientific, professional, and technical support services for
[National Institute of Allergy and Infectious Diseases] NIAID in
Bethesda, Maryland, are outside the scope of the Requirements
Contract. Cygnus contends that the Requirements Contract only
provides for staff, and not services, which Cygnus believes is
materially different. Protest at 14. We disagree.
The Competition in Contracting Act of 1984 (CICA) requires that
agencies specify their needs and solicit offers in a manner
designed to achieve full and open competition, so that all
responsible sources are permitted to compete. 41 U.S.C. § 3301
(2011). When a protester alleges that the issuance of a task or
delivery order under a multiple-award contract is beyond the
scope of the contract, we analyze the protest in essentially the
same manner as those in which the protester argues that a
contract modification is outside the scope of the underlying
contract. The fundamental issue is whether issuance of the task
or delivery order in effect circumvents the general statutory
requirement under CICA that agencies use competitive procedures
when procuring their requirements. Specialty Marine, Inc.,
B-293871; B-293871.2, June 17, 2004, 2004 CPD ¶ 130 at 4.
In determining whether a task or delivery order is outside the
scope of the underlying contract, and thus falls within CICA's
competition requirement, our Office examines whether the order
is materially different from the original contract, as
reasonably interpreted. See Emergent BioSolutions Inc.,
B-402576, June 8, 2010, 2010 CPD ¶ 136 at 8 (where the type of
work under a contract as modified remains substantially
unchanged, we do not view modifications of the technical
requirements of performance to be outside the scope). Evidence
of a material difference is found by reviewing the circumstances
attending the original procurement; any changes in the type of
work, performance period, and costs between the contract as
awarded and the order as issued; and whether the original
solicitation effectively advised offerors of the potential for
the type of orders issued. In other words, the inquiry is
whether the order is one which potential offerors would have
reasonably anticipated. Symetrics Indus., Inc., B-289606, Apr.
8, 2002, 2002 CPD ¶ 65 at 5.
Here, we find that the task orders issued to Kelly Services are
within the scope of the Requirements Contract. The protested
task orders provided for the performance of support services,
such as contract and grant processing, for NIAID in Bethesda.
See, e.g., AR, Tab 18, Task Order, at 13-18 (contract and grant
specialist to perform support services related to grant
activities at NIAID in Bethesda). The statement of work for the
Requirements Contract identifies six staffing support services
areas for which task orders could be issued. The identified
areas are:
a. scientific research support in
a wide variety of healthcare related areas.
b. professional/executive support to NIH research effort.
c. information technology support to NIH research effort.
d. healthcare support to the NIH research and patient contact
effort.
e. clinical research support to the NIH research.
f. industrial and facility maintenance support to the NIH
research effort.
See AR, Tab 25, Requirements
Contract, statement of work, at 2. In addition, the Requirements
Contract identified 231 labor categories that the contractor may
be required to provide, including such positions as contract and
grants assistants, editorial assistants to support these service
areas, and grants management executives and specialists. See
id., attach. 4, Listing of Specific Labor Categories, at 95-115.
Also, the Requirements Contract stated that in addition to the
identified labor categories the contractor may be required to
provide other “independent contractors,” and that additional
labor categories may be ordered, to perform the services within
the scope of the contract,. See id., at 4, 114-15.
The crux of Cygnus’s argument that the task orders are not
within the scope of the Requirements Contract is that providing
“staffing” support for each of these areas is materially
different from providing the support services. Cygnus contends
that the NIAID RFP requires that the contractor itself actually
perform the services sought, not merely provide personnel to
perform identified services. Protest at 14-15. We find no merit
to this argument. Both the NIAID RFP and the Requirements
Contract provide for the performance of services for the agency
by contractor staff. In this regard, the Requirements Contract
states in multiple places that it is for “non-personal”
services, where the contractor is responsible for the
management, direction and supervision of personnel. This
direction is also included in each of the task orders. AR, Tab
20, Requirements RFP SOW, at 6, 140; Tab 25, Requirements
Contract at 5; statement of work at 10; Tab 18, Task Orders. We
simply fail to see the distinction that the protester attempts
to draw between providing identified services and providing
staffing to perform the services.
Cygnus also complains that some of the task orders are for
consultants, which the protester argues is not within the scope
of the Requirements Contract. For example, one of the task
orders is for a consultant to assist in (a) managing scientific
peer review of grant and cooperative agreement applications; (b)
recommending potential peer review experts to facilitate the
selection, assignment and instruction of committees of
scientists; and (c) identifying highly qualified consultants
from the world-wide scientific community for initial review
groups. See AR, Tab 18, Task Orders, at 123. As noted above,
however, the Requirements Contract specifically provided that
the contractor may be required to provide “independent
contractors” to perform the contract requirements. In any event,
the more pertinent inquiry is whether the services to be
performed are within the scope of work identified in the
Requirements Contract. Again, our review of the task orders,
including those for “consultants,” indicates that the services
sought are within the scope of the six service areas identified
in the Requirements Contract. (Cygnus
Corporation, B-406350, B-406350.2, Apr 11, 2012) (pdf)
Pursuant to 41 U.S.C. sect. 4106(f)(1) (2011), our Office has
jurisdiction to entertain protests in connection with the
issuance or proposed issuance of a task or delivery order only
if the order has a value in excess of $10,000,000, or it is
alleged that the order increases the scope, period, or maximum
value of the contract under which the order is placed. Qwest has
not argued that the order here exceeds the scope, period, or
maximum value of the underlying contract; rather, it maintains
that we have jurisdiction over its protest because the value of
the order in question is [more than $10 million]. The agency
argues in response that the value of the order is [less than $10
million], and that, as a consequence, we lack jurisdiction.
As noted above, the RFQ provides for the addition of
approximately $14 million to the evaluated price of any
contractor proposing to provide the services in a new location.
In the foregoing connection, the solicitation explained as
follows:
The Government will make award to
the responsible offeror whose offer conforms to the
solicitation and is determined to be the lowest price
technically acceptable offer including any Government
transition costs if a move is required. The Government
currently uses data center hosting services under the GSA FTS
2001 contract. The current TECC hosting services are currently
provided by Verizon Business Services. The hosting facility is
located in Manassas, VA. The TECC is a critical data center
for USCIS and must continue to operate during any transition
to a new hosting location. Therefore, new [government
furnished] equipment (equivalent to the [government-furnished
equipment] located in the current hosting environment) along
with data circuits must be procured, installed, and configured
in any new hosting location. In addition, existing hosting
services and existing data circuits would need to be
maintained during the migration from the current TECC
environment to a new hosting location. The Government
estimates it would incur costs of $13,895,944 for the
equipment acquisition, configuration, data circuits, and
continued hosting services during migration. Therefore, the
sum of $13,895,944 will be added to the total price (including
options) of all proposals requiring a migration from the
current TECC environment/location to a new
environment/location.
RFQ at 5.
The protester argues that because the RFQ provides for the
evaluated prices of the non-incumbent contractors to include the
costs associated with transition to a new location, these costs
should be considered part of the value of the order. The agency
argues in response that the value of the task order here is the
value of the services to be furnished pursuant to the order
only--that is, the costs associated with transition to a new
location should not be considered as part of the value of the
order because the government is not asking the contractor to
incur, and will not be compensating the contractor for, these
costs.
We have previously recognized that there are circumstances in
which the successful contractor's proposed price is not the sole
determinant of the value of an order, see, e.g., U.S. Bank,
B-404169.3, Feb. 15, 2011, 2011 CPD para. 43 at 3-4; ESCO
Marine, Inc., B‑401438, Sept. 4, 2009, 2009 CPD para. 234 at
5-6. In these cases, the operative inquiry concerns the value of
the goods or services being provided, and for which the
contractor is, in fact, being compensated, under the order.
Here, it is apparent that the agency will not be compensating
the contractor for the costs of acquiring and/or configuring
equipment necessary for performance of the order. Rather, the
government will bear these costs apart from the task order and
the costs will be assessed to contractors solely for the purpose
of evaluation in the task order competition. Since the costs do
not reflect a value to be provided by the contractor under the
order for which it will be compensated, the value of these costs
cannot be considered for the purpose of invoking our task and
delivery order protest jurisdiction. Because it is also apparent
from the record that, unless the costs associated with the
transition to a new location are included, the value of the
order in question is less than $10 million, we conclude that we
do not have jurisdiction over the protest. Accordingly, Qwest's
protest is dismissed. (Qwest
Government Services, Inc., B-404845, March 25, 2011) (pdf)
In determining whether a task order is beyond the scope of the
contract, GAO and the courts look to whether there is a material
difference between the task order and that contract. DynCorp,
supra, at 6; MCI Telecomms. Corp., B‑276659.2, Sept. 29, 1997,
97-2 CPD para. 90 at 7; see also AT&T Commc'ns, Inc. v. Wiltel,
Inc., 1 F.3d 1201, 1204 (1993); CCL, Inc., 39 Fed. Cl. 180,
191-92 (1997). Evidence of such a material difference is found
by reviewing the circumstances attending the procurement that
was conducted; examining any changes in the type of work,
performance period, and costs between the contract as awarded
and as modified by the task order; and considering whether the
original contract solicitation adequately advised offerors of
the potential for the type of task order issued. Anteon Corp.,
supra, at 5; Data Transformation Corp., B‑274629, Dec. 19, 1996,
97-1 CPD para. 10 at 6. The overall inquiry is whether the task
order is of a nature that potential offerors would reasonably
have anticipated. Anteon Corp., supra, at 5.
We find that the task order and RFQs for tents and related
accessories are within the broad scope of the ID/IQ contract for
operational logistical equipment. The stated primary purpose of
the contract is to provide all equipment necessary for special
operations forces to perform their missions. In this regard,
offerors were informed that contractors would be required to
quickly supply over 8,100 items of equipment and that a
significant number of items may be identified after contract
award. The RFP identified, as examples, 23 broad categories of
items, 9 federal supply classes, and nearly 400 core items.
Although the tents being procured here were not specifically
identified in the contract's original examples of equipment that
could be ordered, we agree with DLA that the tents are within
the broad types of survival gear and logistical and tactical
equipment envisioned by the ID/IQ contract.[7] That is, these
tents will be used for, among other things, basic shelter for
troops deployed in harsh environments, [DELETED]. In this
regard, we do not agree with the protester's apparent belief
that the items to be procured under the contract were limited to
items that could be carried by a soldier, given that a number of
items, e.g., diver training tanks, boats, aircraft escape
slides, and speed bumps, appear to be too large to be carried by
an individual. See RFP at 120-26.
Although the protester disagrees with the agency that the tents
fit within these identified categories of items that could be
purchased, the protester has not identified any definition in
the contract, or elsewhere, that limits these categories in the
fashion argued by the protester. In short, we agree with the
agency that potential offerors would reasonably have anticipated
that the ID/IQ contract could require contractors to provide
tents and related accessories necessary for special operations
forces to accomplish their mission. See Speciality Marine, Inc.,
B‑293871, B‑293871.2, June 17, 2004, 2004 CPD para. 130 at 6
(broad ID/IQ contract for repair of Navy Strategic Sealift ships
reasonably encompassed tugboats and inspection and repair of the
tugboats' life rafts); Computers Universal, Inc., B‑293548, Apr.
9, 2004, 2004 CPD para. 78 at 2-3 (ID/IQ's general requirement
for modification, maintenance and repair of weapons systems
reasonably encompassed non-destructive weapons inspection and
testing services). (California
Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters,
B-403421; B-403421.2; B-403766; B-403788, November 5, 2010)
(pdf)
Since October 23, 2006, FSC has held a contract with the Fleet
Industrial Supply Center (FISC), Norfolk, Virginia, within the
Naval Supply Systems Command, to provide a wide array of
training services at the Great Lakes Training Center. Among the
services provided under FSC's contract are training courses for
the Center for Naval Engineering, the Center for Surface Combat
Systems (CSCS), the Center for Personal Development, the Center
for Naval Leadership, the Center for Information Dominance, and
the Recruit Training Center.
The only training that the Navy intends to transfer to the
Seaport-E ID/IQ contract--from FSC's current contract--is the
CSCS training, consisting of apprentice technical training, "A"
schools, and "C" schools. Apprentice technical training teaches
engineering and analytical disciplines that provide the first
building blocks, primarily in electricity and electronics, to
provide the fundamental knowledge needed for "A" school. Tr. at
128, 132. An "A" school teaches sailors the technical aspects of
many of the specific platforms and systems they will encounter
in the fleet; for example, "in say gunner's mate A school [GM A]
school, how do we use those electronic circuits in a major
caliber gun?" Tr. at 133. A "C" school is for advanced technical
training for specific platforms and systems. Tr. at 134.
(sections
deleted)
FSC argues that
the technical training being provided at Great Lakes is outside
the scope of the SeaPort-E contract. Specifically the protester
contends that the CSCS training at Great Lakes is technical
training at the apprentice level, and not the more complex
technical training anticipated by the SeaPort-E contract.
(sections
deleted)
When a protester
alleges that the issuance of a task or delivery order under a
multiple-award contract is beyond the scope of the contract, we
analyze the protest in essentially the same manner as those in
which the protester argues that a contract modification is
outside the scope of the underlying contract. DynCorp Int'l LLC,
supra. In determining whether a task order or delivery order is
outside the scope of the underlying contract, and thus falls
within CICA's competition requirement, our Office examines
whether the order is materially different from the original
contract, as reasonably interpreted. Evidence of a material
difference is found by reviewing the circumstances attending the
original procurement; any changes in the type of work,
performance period, and costs between the contract as awarded
and the order as issued; and whether the original solicitation
effectively advised offerors of the potential for the type of
orders issued. In other words, the inquiry is whether the order
is one which potential offerors would have reasonably
anticipated. Symetrics Indus., Inc., B-289606, Apr. 8, 2002,
2002 CPD para. 65 at 5.
In our view, the record demonstrates that the CSCS classes
currently provided under the FSC contract at Great Lakes are
clearly technical in nature. However, the protester argues that
these classes are essentially community college-level courses
that teach fundamentals, such as fundamental electronics and
electrical theory, and thus do not meet the SeaPort-E definition
of "technical training support" because these classes are not
tied to specific "platforms, systems, [or] warfighting"
capabilities. Protester's Hearing Comments at 13.
While the record shows that some of the CSCS classes under FSC's
contract are for apprentice technical training, other CSCS
classes include "A" school and "C" school training, which are
more closely focused on specific platforms, systems and
warfighting capabilities. As noted by the agency, the "A" school
training may be the last classroom technical training a sailor
receives before joining the fleet and operating communications,
navigation and weapons systems. Tr. at 41, 134, 170. As to
apprentice technical training the agency reasonably explains
this training is focused on the fundamentals that are needed as
a prerequisite for the "A" school and "C" school training, such
as electricity and electronics, and "hands on" training about
the use of basic equipment, such as amplifiers, multimeters,
oscilloscopes, signal generators, and circuit cards. Tr. at 128,
132-33, 164-65. A Navy witness explained that they view this
training as "a pyramid starting with [apprentice technical
training], and [continuing with] the focus of how we take those
fundamentals and apply them to different components of naval
weapon systems all the way through the specialized C schools."
Tr. at 165.
Based on our review of the record, we find the agency has
reasonably established that the CSCS training in FSC's contract,
including the apprentice technical training, is technical
training as defined under the Seaport-E contract. The Navy has
also reasonably explained why this integrated CSCS training is
"required to ensure that the warfighter and technical support
community is provided with adequate instruction" that is related
to the Navy's "platforms, systems, and warfighting
capabilities." AR, Tab 1, Seaport-E SOW sect. 3.18.1. Contrary
to FSC's arguments, a reasonable reading of the technical
training support described in the Seaport-E SOW does not limit
this support to classified training focused exclusively on a
particular system or platform.
Given the broad scope of the Seaport-E contract, FSC could have
reasonably anticipated that the CSCS technical training that FSC
was conducting at Great Lakes could be obtained through task
orders issued against the SeaPort-E ID/IQ contracts. Moreover,
as discussed, the NSWCDD placed a well publicized task order for
CSCS training under the SeaPort‑E contract in 2006. In the four
years since then, FSC could have applied for an award of a
SeaPort-E contract, which--as explained above--contemplates
rolling admissions, so as to be eligible for an award of the
CSCS task order. (Florida State
College at Jacksonville, B-402656, June 24, 2010) (pdf)
The analysis of whether a task order is outside the scope of a
multiple-award contract is the same as the analysis of whether a
contract modification is outside the scope of a single-award
contract. Anteon Corp., supra, at 4-5. In addition, the law in
this area is well-settled. In determining whether a task order
is beyond the scope of the contract, GAO and the courts look to
whether there is a material difference between the task order
and that contract. Id. at 5; MCI Telecomms. Corp., B‑276659.2,
Sept. 28, 1997, 97-2 CPD para. 90 at 7; see also AT&T Commc'ns,
Inc. v. Wiltel, Inc., 1 F.3d 1201, 1204 (1993); CCL, Inc., 39
Fed. Cl. 180, 191-92 (1997). Evidence of such a material
difference is found by reviewing the circumstances attending the
procurement that was conducted; examining any changes in the
type of work, performance period, and costs between the contract
as awarded and as modified by the task order; and considering
whether the original contract solicitation adequately advised
offerors of the potential for the type of task order issued.
Anteon Corp., supra, at 5; Data Transformation Corp., B-274629,
Dec. 19, 1996, 97-1 CPD para. 10 at 6. The overall inquiry is
whether the task order is of a nature that potential offerors
would reasonably have anticipated. Anteon Corp., B‑293523,
B‑293523.2, Mar. 29, 2004, 2004 CPD para. 51 at 5.
DynCorp argues that the services requested by the TORPs at issue
here are outside the scope of the underlying ID/IQ contracts,
because the requested services are broader than and only
indirectly related to the underlying contracts' counter-narcoterrorism
efforts. In DynCorp's view, these TORPs involve support services
for counter-insurgency and other efforts unrelated to counter-narcoterrorism,
and include support for organizations within the Ministry of the
Interior and Afghan National Police that are not directly
involved in counter-narcoterrorism operations. Protest at 20-26;
Comments at 21-34.
The Army admits that the Ministry of the Interior and Afghan
National Police are primarily involved in counter-insurgency
activities. AR at 40. However, according to the Army, there is a
"nexus" between these counter-insurgency activities and counter-narcoterrorism
"because in Afghanistan the insurgency is funded by drug
trafficking" and therefore "any organization or ministry
conducting counter[-] insurgency operations in Afghanistan
necessarily is involved in countering illegal drug trafficking."
AR at 23, 34-38; Contracting Officer's Statement at 49‑53
(explaining how drug trades support insurgency). Because of this
funding "nexus," the Army contends that there is no difference
between counter-insurgency and counter-narcoterrorism--"the two
are the same." AR at 43. The Army also argues that the language
of the underlying ID/IQ contracts (and sample tasks included
within them) is broad enough to include training for all police
and Ministry of the Interior activities and is not limited to
counter-narcoterrorism. AR at 31-34, 43-49.
Based on our review of the record, we find that the underlying
ID/IQ contracts do not contemplate providing the services
requested by the TORPs here. As noted above, the underlying
ID/IQ contracts advised that future task orders would be related
to the counter-narcoterrorism mission of the Counter
Narcoterrorism Technology Program Office. AR, Tab 4e, ID/IQ
Contract Performance Work Statement, at 6, 18-19. Although the
ID/IQ contracts were broadly written and included some training
and logistics support, these contracts made clear that the
activities had to be related to counter‑narcoterrorism
operations.
Here, with regard to TORP 150, only a small portion of requested
training services arguably relate to counter-narcoterrorism or
support the counter-narcoterrorism mission of the Counter
Narcoterrorism Technology Program Office. See Contracting
Officer's Statement at 54. The vast majority of the TORPs'
requested services involve training the Ministry of the Interior
and Afghan National Police in activities that support their
missions of providing general law enforcement and fighting the
insurgency. These activities and missions are not mentioned
anywhere in the ID/IQ contracts. The fact that there may be some
small overlap in the services requested by the TORPs with those
required under the ID/IQ contracts does not permit an agency to
purchase other services under the ID/IQ contracts that were not
reasonably contemplated when the ID/IQ contracts were issued.
Anteon Corp., supra, at 5.
In addition, we find the disconnect between the underlying ID/IQ
contracts and TORP 166 particularly striking. Although, as
mentioned above, the ID/IQ contracts contemplated certain
training and logistics support for counter-narcoterrorism
activities, the performance work statement for TORP 0166
essentially identifies a logistics contract unrelated to these
activities for the operation of 15 specific camps located
throughout Afghanistan. For example, to support the operation of
these camps, the task order anticipates providing dining
facilities; maintaining water systems; providing heating,
ventilation, and air conditioning services; maintaining the
electrical system, a fleet of vehicles, and communications
systems; and providing medical services, a laundry, and morale,
welfare and recreation activities. AR, Tab 5e, TORP 166
Performance Work Statement, at 3-11.
Although the agency argues that the services sought by the TORPs
are within the scope of the underlying ID/IQ contracts because
the insurgency in Afghanistan is funded, at least in part, by
money from drug trafficking, AR 34-38, our analysis is
necessarily focused on the contract vehicles at issue here--i.e.,
the underlying ID/IQ contracts and the two TORPs for task orders
the agency seeks to place against them. As noted above, the
ID/IQ contracts do not include counter-insurgency activities and
did not advise offerors that mentoring, training, facilities,
and logistics support for counter-insurgency, general law
enforcement, or the administration of the Ministry of the
Interior or the Afghan National Police unrelated to counter-narcoterrorism
operations could be provided. Instead, as discussed above, the
ID/IQ contracts limited the training and support to activities
that supported counter-narcoterrorism operations.
We also reject the agency's arguments that the sample task
orders placed potential offerors on notice that police training
broader than counter-narcoterrorism training could be provided
under the ID/IQ contracts. See AR at 44. Our review of the three
sample task orders shows a clear nexus between the activities or
technology requested and counter-narcoterrorism operations.
While "Sample Task 3" provides for training and facilities
support for the Afghan Border Police, this police organization
(in contrast to rest of the Afghan National Police, with the
exception of the Counter Narcotics element) is directly involved
in counter-narcoterrorism activities. In addition, the sample
task made clear that the training was to teach the border police
how to "perform the functions necessary to deny the flow of
illegal persons, drugs, and weapons across borders." AR, Tab 4d,
Sample Task 3 Performance Work Statement, at 1. Here, however,
the vast majority of services requested under the TORPs support
counter-insurgency and other operations that do not involve
counter-narcoterrorism-related operations.
Finally, we find unpersuasive the agency's reliance on general
statements in the TORPs and ID/IQ contracts to show that the
TORPs are within the scope of the ID/IQ contracts. For example,
we note that the "mission objective" for each of the TORPs
generally states that the services sought "support the
Warfighter in globally combating Narcoterrorism." AR, Tabs 5c
and 5e, TORP 150 and 166 Performance Work Statements, at 1. We
also acknowledge the presence of general statements in the ID/IQ
contracts that indicate that the Counter Narcoterrorism
Technology Program Office will acquire goods and services "that
cross traditional Department of Defense acquisition and
contracting scopes," cover a "full spectrum of support," and
include "[s]upport for training, operations, and logistic[s] for
military and civilian missions." AR, Tab 4e, ID/IQ Contract
Performance Work Statement, at 5. However, these statements must
be read in the context of the solicitations as a whole. As noted
above, the underlying ID/IQ contracts make clear that the
services involved were to be provided in connection with
counter-narcoterrorism operations, while the TORPs sought
services that were much broader than counter-narcoterrorism and,
therefore, are outside the scope of the ID/IQ contracts. A
contracting agency cannot extract isolated "catch all" words and
phrases from a contract, or stretch the flexibility of that
contract, in order to justify issuing a task order whose nature
would not reasonably have been anticipated by potential offerors;
to countenance such a justification would eviscerate the
requirements of CICA. Ervin and Assocs., Inc., supra, at 9.
In sum, we find that the TORPs for training and associated
facilities and logistics support for the Ministry of the
Interior and Afghan National Police are outside the scope of the
ID/IQ contracts to support worldwide counter-narcoterrorism
operations. We sustain the protest on this basis. (DynCorp
International LLC, B-402349, March 15, 2010) (pdf)
Outdoor Venture Corporation, of Stearns, Kentucky, protests the
decision of the Department of the Army to obtain Ultra
Lightweight Camouflage Net Systems (ULCANS) under a multiple
award, indefinite-delivery/indefinite-quantity (ID/IQ) delivery
order contract. Outdoor Venture asserts that the products being
procured, full concealment covers [FCC], are outside the scope
of the ID/IQ contract.
(sections deleted)
As explained
below, we think that the record shows that the FCCs are within
the scope of the ID/IQ contract at issue. The statement of work
listed variations of ULCANS to be procured under the contract
and noted that other versions not specifically identified could
also be procured. According to the ULCANS performance/design
specifications,
the mission of
the ULCANS is to provide concealment to tactically deployed
military equipment, facilities, and troops in a Woodland or
Desert environment respectively. The systems shall provide
concealment from visual, thermal, near infrared, and radar
sensors. The system must require only minimal training for
operation and maintenance.
AR, Tab 5,
Performance/Design Specification sect. 3.1.1, Mission. The FCC
clearly is consistent with the ULCANS mission, and it is an
improved version of the current HMMWV turret cover, itself a
ULCANS. The FCCs are made with the same specialized fabric that
is essential to the manufacturing of ULCANS and that is
available only from the two firms that hold the ID/IQ contract
at issue. Given that the FCC performs the same mission for which
ULCANS are intended--concealment of military equipment, is
evolved from a current ULCANS, and is constructed of the
material essential to ULCANS manufacturing, we think that a
potential offeror would reasonably have anticipated that the
agency would procure it under the existing ID/IQ contract.
The protester nevertheless argues that the ID/IQ contract’s
performance/design specifications require that a ULCANS be
comprised of a screen system and a support system, and because
the FCC lacks a support system it cannot be an ULCANS. The Army
asserts that the grommets and bolts required to attach the FCC
to the vehicle fit the definition of “support system.”
The intent of the portion of the specifications from which the
protester quotes--system components--is to identify the
necessary components of existing systems. The tables set forth
the number and type of screen system and support system
components, some of which were “to be determined.” In as much as
the specifications seem designed to ensure that the manufacturer
delivers all the necessary components to make particular ULCANS
operational, and not to dictate the particular kind of “support
system” a ULCANS utilizes, the protester’s reliance on so narrow
a reading of the performance/design specifications is
unreasonable.
The protester argues that the FCC’s relative simplicity as a
“build to print” item takes it outside the scope of items that
may be procured under the ID/IQ contract. As evidence for the
claim that the FCCs are less complex than other ULCANS, the
protester points to the fact that the FCC has already been
developed and requires no further development or testing.
Similarly, the protester notes that the FCCs are built to level
III drawings, which are more detailed than the level II drawings
to which the other ULCANS are manufactured. We find this
argument unpersuasive. As noted above, in determining whether
the item being procured is outside the scope of the ID/IQ
contract, the inquiry is whether the delivery order represents a
material change in the type of work, performance period, or cost
of a contract. This delivery order, which represents a fraction
of the ID/IQ contract dollar ceiling and will be completed
before the contract’s expiration, clearly does not represent a
material change in either the performance period or cost of the
ID/IQ contract. Further, we do not think that the fact that the
FCC has already been developed and that the FCC is “simple” to
manufacture demonstrates that the item is outside the type of
work contemplated under the ID/IQ contract. (Outdoor
Venture Corporation, B-401628, October 2, 2009) (pdf)
Morris argues that providing food services to detainees is
outside the scope of the underlying ID/IQ contracts. Morris
acknowledges, however, that the scope of work for the underlying
contracts includes providing food services for Iraqi police,
Iraqi military personnel and coalition forces at the same
location. Protester’s Comments at 2. Nonetheless, Morris
contends that extending these food services to detainees is
materially different from the currently-provided food services
because the nutritional requirements for feeding detainees are
different, and because of differences in the command structure
applicable to detainees. We disagree.
The Competition in Contracting Act (CICA) of 1984 requires that
agencies specify their needs and solicit offers in a manner
designed to achieve full and open competition, so that all
responsible sources are permitted to compete. 10 U.S.C. sect.
2305(a)(1)(A)(i) (2000). When a protester alleges that the
issuance of a task or delivery order under a multiple-award
contract is beyond the scope of the contract, we analyze the
protest in essentially the same manner as those in which the
protester argues that a contract modification is outside the
scope of the underlying contract. The fundamental issue is
whether issuance of the task or delivery order in effect
circumvents the general statutory requirement under CICA that
agencies use competitive procedures when procuring their
requirements. Specialty Marine, Inc., B-293871; B-293871.2, June
17, 2004, 2004 CPD para. 130 at 4.
In determining whether a task or delivery order is outside the
scope of the underlying contract, and thus falls within CICA’s
competition requirement, our Office examines whether the order
is materially different from the original contract, as
reasonably interpreted. Evidence of a material difference is
found by reviewing the circumstances attending the original
procurement; any changes in the type of work, performance
period, and costs between the contract as awarded and the order
as issued; and whether the original solicitation effectively
advised offerors of the potential for the type of orders issued.
In other words, the inquiry is whether the order is one which
potential offerors would have reasonably anticipated. Symetrics
Indus., Inc., B-289606, Apr. 8, 2002, 2002 CPD para. 65 at 5.
In our view, the record in this case, particularly the scope
determination analyses of both COs, quoted above, demonstrates
that detainee food services are within the scope of the
underlying contract. While the Army concedes that the ID/IQ
contract does not make reference to either “detainees,”
“detention centers” or “TIFRCs,” we find the absence of those
terms does not mean that the detainee feeding requirements are
outside the scope of the ID/IQ contract.
For instance, the record shows that the agency considered two
detainee specific requirements that arguably might differ from
the food services operations provided to Iraqi police/military
personnel and coalition forces--the requirement to deliver meals
to the detainees, and the requirement that local nationals are
not permitted to serve detainee meals. The agency concluded that
both requirements were within the scope of the ID/IQ contract.
In this regard, the agency decided that the requirement to
transport meals to the detainees was encompassed by paragraph
4.6 of the ID/IQ contract which requires the contractors to
transport meals to locations designated by the CO or the CO’s
representative. Similarly, the agency decided that the
requirement prohibiting local nationals from serving food to
detainees could be satisfied under paragraph 30.12 of the ID/IQ
contract which specifically requires contractor employees
serving, preparing and handling food, to be third country
nationals. Tr. at 127-29. Thus, the agency found that every
aspect of the requiring activity’s specific needs could be
provided under the ID/IQ contract.
Nonetheless, the protester argues that the detainee-specific
nutritional requirements and food portion sizes are
distinguishable from the nutritional requirements and food
portion sizes specified in the underlying ID/IQ contract. In our
view, even if we assume for purposes of this argument that these
differences are exactly as the protester contends, we do not
think these differences support a conclusion that this order
exceeds the scope of the underlying contracts.
For example, we recognize that the detainee-specific nutritional
requirements and food portion sizes are not listed in the
underlying ID/IQ contract. However, both COs testified that it
was not unusual for ID/IQ contracts, such as the one at issue
here, to set forth general requirements since the SOW for each
task order proposal will delineate the specific requirements to
be acquired against the underlying contract. Tr. at 107-112;
154-55. The record shows instead that the ID/IQ contract, at
paragraph 4.1.2, specifies food services with Iraqi-style menus
for breakfast, lunch, and dinner, and permits “substitutions of
similar quantity and quality,” as well as permitting the
contractor to “equitably adjust the menu based on the
availability of meat, fresh fruits and vegetables, and other
items from the local market.” ID/IQ contract at 16. Thus, the
underlying contract clearly allowed the agency to tailor the
quantity and quality of the nutritional requirements for
detainees. At any rate, although Morris disagrees with the
agency’s determination in this regard, it has not shown that the
detainee feeding requirements are materially different from the
food services to be provided to coalition forces or Iraqi
police/military personnel housed at Camp Taji.
Finally, during the course of this protest, the parties argued
about the reasons Morris did not compete for one of the
underlying ID/IQ contracts here. We see no reason to address
this issue. Rather, the question for our Office is whether the
current task order is of a nature which potential offerors would
reasonably have anticipated. See e.g., Anteon Corp., B-293523,
B-293523.2, Mar. 29, 2004, 2004 CPD para. 51 at 5. We conclude
it is.
As discussed above, there is a logical connection between the
broad scope of food service operations delineated in the ID/IQ
contract--the feeding of individuals housed within a specified
Iraqi training camp and/or coalition base--and the food service
operations required to feed detainees located within an Iraqi
training camp and/or coalition base. Thus, we conclude that
offerors could have reasonably anticipated during the original
ID/IQ competition that feeding requirements, like those here,
could be obtained through task orders issued against the
existing ID/IQ contracts. Accordingly, we find that the record
substantiates the agency’s determination that the detainee
feeding requirements are within the scope of the existing ID/IQ
contracts. (Morris Corporation,
B-400336, October 15, 2008) (pdf)
Colliers protests that the task order is outside the scope of
Kunwon’s ID/IQ contract. According to the protester, the
underlying multiple-award ID/IQ contract called for “the
management of a program to ‘realign and relocate’ a substantial
amount of the US military force structure in Korea Opposition to
Motion to Dismiss at 1. Colliers further argues that because the
HHAP concept was not mentioned or contemplated when the IDIQ
contract was awarded, it could not be considered within the
scope of that contract, and conducting a study or an industry
forum regarding a “complex leasing program for military family
housing” involving the private sector was unlike the planning
and management tasks set forth in the ID/IQ contract. Id.
As a general rule, the Competition in Contracting Act of 1984 (CICA)
requires contracting agencies to obtain full and open
competition in the procurement of supplies and services. 10
U.S.C. sect. 2304(a)(1)(A) (2000); Specialty Marine, Inc.,
B‑293871, B-293871.2, June 17, 2004, 2004 CPD para. 130 at 2.
Our Office does not review a protest of the issuance or proposed
issuance of a delivery or task order except for a protest on the
ground that the order increases the scope, period, or maximum
value of the contract under which the order is issued. 10 U.S.C.
sect. 2304c. In determining whether a task or delivery order is
outside the scope of the underlying contract, and thus falls
within CICA’s competition requirement, our Office examines
whether the order is materially different from the original
contract. Evidence of a material difference is found by
reviewing the circumstances attending the original procurement;
any changes in the type of work, performance period, and costs
between the contract as awarded and the order as issued; and
whether the original solicitation effectively advised offerors
of the potential for the type of orders issued; overall, the
inquiry is whether the order is one which potential offerors
would have reasonably anticipated. Relm Wireless Corp.,
B-298715, Dec. 4, 2006, 2006 CPD para. 190 at 2.
Based on the record, we conclude that the task order to evaluate
the feasibility of the HHAP was within the scope of the ID/IQ
contract as originally awarded. As previously noted, the
contract required the efficient realignment and relocation of a
substantial amount of the U.S. military force structure through
PM techniques, such as financial feasibility studies,
construction bidder interest, market analysis to determine key
subcontractor’s services, cost and value management, and
construction cost estimatesIt seems apparent that a feasibility
study regarding what approach should be taken regarding military
housing at Camp Humphreys clearly relates to the efficient
realignment and relocation of the U.S. military to that base
with the best achievable quality, which was the primary purpose
of the ID/IQ contract. Moreover, the industry forum and
feasibility study, targeted to participants who could provide
financial and technical feedback on the HHAP concept is the type
of task contemplated by the ID/IQ contract. A financial
feasibility study requires financial feedback and information,
just as market analysis or construction related issues of bidder
interest or cost would have to be based on technical insight.
Further, the management nature of the contract necessitates a
planning process sufficient to determine the scopes of work for
separate projects, and to schedule and manage the implementation
of those projects while complying with the program’s budget and
efficiency requirements. While it is true that the contract did
not specifically provide for an industry forum concerning the
HHAP concept, as indicated above, the scope of work for the
ID/IQ contract was broad and specifically provided for
unidentified “special studies,” such as the feasibility study
here. (Colliers International,
B-400173, July 3, 2008) (pdf)
This analysis necessarily begins with the language of the NDAA.
Specifically, it states:
(1) A protest is not authorized
in connection with the issuance or proposed issuance of a task
or delivery order except for--
(A) a protest on the ground that
the order increases the scope, period, or maximum value of
the contract under which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
10 U.S.C. sect. 2304c(e)(1). Accordingly, our authority to
consider protests challenging the issuance of task or
delivery orders does not extend to orders valued below $10
million, absent an allegation that the order increases the
scope, period, or maximum value of the underlying contract.
Here, the record does not
indicate, and the protester does not otherwise allege, that the
proposed delivery orders will exceed the scope, period, or
maximum value of the underlying ID/IQ contract. Nor is there any
dispute that the values of the proposed orders under either RFP
are less than the $10 million jurisdictional threshold. Under
these circumstances, this Office does not have jurisdiction
under the NDAA to consider the protests of alleged violations of
procurement statutes or regulations such as the small business
set-aside requirements.
We also think Delex’s reliance on our decision in LBM is
misplaced. In that decision, LBM, a small business contractor
that had been performing transportation motor pool services for
the Army under a small business set-aside, challenged the
agency’s decision to transfer the follow-on requirement for the
motor pool services to an existing ID/IQ contract without
consideration of the set-aside requirements in FAR sect.
19.502-2(b). We concluded that the LBM protest was, in essence,
a challenge to the terms of the underlying ID/IQ task order
contract. Unlike Delex, LBM did not hold an ID/IQ contract and
never received effective notice that the ID/IQ contract would,
later, be viewed as including the work LBM was performing under
a small business set-aside. LBM, supra, at 4-7. As a
consequence, the Delex protests are not analogous to the facts
and circumstances in the LBM decision, and provide no basis for
our Office to hear this protest in the face of the unambiguous
statutory bar to protests of delivery orders valued under $10
million.
The protests are dismissed. (Delex
Systems, Inc., B-400321; B-400402, August 5, 2008) (pdf)
On January
28, 2008, the President signed the NDAA into law. Pub. L. No.
110-181, 122 Stat. 3 (2008). Among other things, the NDAA amends
FASA and authorizes this Office to consider protests in
connection with the issuance of task orders in excess of $10
million, further providing that this Office’s jurisdiction with
regard to such protests “shall take effect on the date that is
120 days after the date of the enactment of this Act, and shall
apply with respect to any task or delivery order awarded on or
after such date.” Pub. L. 110-181,
sect. 843(b)(2),(3),
122 Stat. 239. There is no dispute that May 27, 2008 was the
120th day after enactment of the NDAA.
The record shows that, in December 2007, GSA issued task order
request (TOR) No. GSC-TFMG-08-31980 under GSA’s Millennia
Government Wide Acquisition Contract (GWAC), seeking proposals
to provide support for various U.S. Army information technology
systems. As amended, the TOR required offerors to submit final
proposals by April 21, 2008. SRA and SAIC each submitted timely
final proposals.
The record further shows that GSA’s contracting officer made the
requisite best value determination on Friday, May 23, 2008,
selecting SAIC as the task order awardee. Declaration of GSA
Contracting Officer, June 16, 2008, para. 5. In this regard, the
contracting officer elaborates that, in the afternoon of May 23,
he and the contract specialist began to enter the necessary
award documentation into GSA’s automated task order tracking and
ordering system (TOS), that this process took approximately 8
hours to complete, and that he executed the GSA Form 300 “Order
for Supplies and Services,” shortly before 11 pm on May 23. Id.
paras. 7, 8, exh. C. The record further establishes that, a few
minutes thereafter, the contracting officer sent an email to
SAIC personnel, notifying SAIC of the award, and that the task
order was uploaded to the web-based TOS system in a manner
permitting SAIC to log on to the TOS, access the task order
documents, and download those documents to SAIC’s computer
equipment. Id. paras. 9,10; Declaration of GSA Senior Project
Manager, June 25, 2008, paras. 7, 7.1-7.5, 9. SAIC has submitted
a declaration from its contracts manager verifying that the task
order was downloaded and circulated via email to other SAIC
employees late at night on May 23 and in the early morning hours
of May 24. Declaration of SAIC Contracts Manager, June 25, 2008,
para. 2, 3. Finally, the record shows that the documents GSA’s
contracting officer transmitted to SAIC via the TOS system on
May 23, and which were thereafter downloaded by SAIC no later
than May 24, included the GSA Form 300, “Order for Supplies and
Services,” and the complete task order itself, which consists of
over 200 pages, including the detailed statement of work, the
cost/price schedule, the delivery/performance schedule, and
contract administration data. Agency Response to Request for
Production of Documents, Task Order No. GST008AJM087 (May 23,
2008).
On May 27, the agency notified SRA of the task order award. This
protest followed. Based on the fact that the agency did not
notify SRA of the task order award until May 27, the effective
date of the NDAA, SRA maintains that its protest challenging the
agency’s task order award is authorized by the NDAA’s amendment
of FASA regarding protest jurisdiction. We disagree.
DISCUSSION
As noted above, FASA generally precludes this Office’s
consideration of protests challenging an agency’s issuance of
task orders under ID/IQ contracts when the task orders are
issued prior to May 27, 2008. Further, here, the terms of the
underlying Millennia GWAC specifically addresses the matter of
when a task order is issued, stating: “A task order is issued
when the Government transmits the task order to the contractor.”
Protester’s Expedited Document Request, June 19, 2008, exh. 2.
Based on the record discussed above, we conclude that the task
order protested by SRA was awarded and transmitted to SAIC no
later than May 24, 2008--that is, prior to May 27, 2008, the
effective date of NDAA. Accordingly, pursuant to the provisions
of FASA, in effect prior to May 27, this Office does not have
jurisdiction to consider the protest. (Systems
Research and Applications Corporation, B-400227, July 21,
2008) (pdf)
DBE raises two
arguments that the competition for the Year 2 orders here
constituted a downselection. First, DBE argues that the TOPR
competition was a downselection because it denied the protester
an opportunity to compete for work for the duration of the Year
2 task order. Second, DBE argues that it will suffer economic
hardship if it cannot receive work from FEMA during the time
covered by the Year 2 task order, and that our Office should
expand its definition of downselections to consider such
circumstances. For the reasons discussed below, we reject both
of the protester’s arguments. As to its first argument,
DBE contends that the TOPR competition foreclosed the
protester’s opportunity to compete for work for at least the
duration of the Year 2 order, and possibly for future orders as
well. DBE argues that the TOPR performance work statement covers
the full scope of the ID/IQ contract statement of work, and
therefore it is likely that DBE will have no further
opportunities to compete for work during the duration of those
orders. DBE further contends that several statements made by
FEMA regarding the Year 2 orders suggest that the agency
intended to use the TOPR as a means to narrow, or “streamline,”
the number of vendors from whom the agency would obtain its
future requirements under the ID/IQ contract. Amend. Protest at
12-14. In this regard, the protester also argues that the agency
has not affirmatively identified what work it may require after
the Year 2 orders expire, thus leaving in doubt the potential
future opportunities for vendors who did not receive Year 2
orders. Even assuming that DBE is correct in its
characterization of the record, we think the facts here differ
from those in the decisions in which our Office has found a
downselection because the issuance of the Year 2 orders does not
foreclose the ID/IQ contractors from the opportunity to compete
for this work for the duration of the contract. See
Electro-Voice, supra, Teledyne-Commodore, LLC--Recon.,
B-278408.4, Nov. 23, 1998, 98-2 CPD para. 121 at 3-4. The ID/IQ
contract here has a 5-year term, and the Year 2 orders have a
six-month base term and six-month option term. Thus, the Year 2
orders cover a maximum of 1 year, and FEMA will remain obligated
to provide these vendors with a fair opportunity to compete for
the agency’s requirements after the instant orders expire. Put
differently, once the Year 2 order expires after 6 or 12 months,
FEMA will be required to give DBE a fair opportunity to compete
for any requirements in the remaining 36 to 42 months of the
underlying ID/IQ contract. DBE’s argument that the issuance of
an order must be viewed as a downselection unless the agency
identifies what future opportunities exist for orders under the
ID/IQ contract misstates our decisions regarding downselections.
Our decisions have characterized a competition as a
downselection only where the terms of an order precludes vendors
from a fair opportunity to compete for any and all future
orders. Palmetto, supra, at 5 n.2. Our Office’s decisions have
not held that a downselection occurs merely because vendors will
not have an opportunity to compete for a particular category of
work for a period of time under the contract. Palmetto, supra,
at 5; The Intrados Group, B-280130, June 22, 1998, 98-1 CPD para.
168 at 2-3; L-3 Commc’ns Co., B-295166, Dec. 10, 2004, 2004 CPD
para. 245 at 2-3. Rather, our decisions have found
downselections only where vendors’ future opportunities to
compete for orders are foreclosed for the duration of the
underlying ID/IQ contract, for example where the successful
vendor is expressly designated as the recipient of all future
orders that might arise under the category of work competed,
with no provision for the fair consideration of the other
vendors for those future orders. Palmetto, supra, at 5. As to
its second argument, DBE contends that even if the issuance of
the Year 2 task order did not constitute a de jure downselection
(as our decisions have defined them), it was nonetheless a de
facto downselection by virtue of imposing economic hardship on
the protester. In this regard, DBE argues that because it is a
veteran-owned small business, it will be “put out of business”
if it does not receive work from FEMA under the ID/IQ contract
during the duration of the Year 2 order, and will therefore not
have a fair opportunity to compete for future orders. Decl. of
DBE Senior Vice President, at 5. Our Office’s
downselection exception to FASA’s prohibition on task order
protests is based on agencies’ statutory obligation to provide
vendors a fair opportunity to compete for task orders, and our
understanding of the legislative intent behind that obligation.
See Electro-Voice, supra. The protester cites no statutory or
regulatory authority to support its contention that the
statutory requirement for a fair opportunity to compete requires
an agency to ensure that a vendor receives sufficient orders
during the course of the ID/IQ contract term to maintain its
financial-well being. Nor does the protester cite any
legislative history that would indicate that FASA intended to
ensure the ongoing financial health of an ID/IQ contract vendor
for the duration of the contract. (Doug
Boyd Enterprises, LLC, B-298237.2, August 6, 2007) (pdf)
Our Office generally does not have jurisdiction to entertain a
protest challenging the issuance of a task order. In this
regard, 10 U.S.C. sect. 2304c(d) (2000) provides that “[a]
protest is not authorized in connection with the issuance or
proposed issuance of a task or delivery order except for a
protest on the ground that the order increases the scope,
period, or maximum value of the contract under which the order
is issued.” The protester does not allege in its protest that
the task order at issue increases the scope, period, or maximum
value of the contract under which it was issued; accordingly,
the protest does not fit within the exception provided in the
statute, and we therefore lack jurisdiction to review the
matter. See N&N Travel & Tours, Inc. et al., B‑285164.2,
B-285164.3, Aug. 31, 2000, 2000 CPD para. 146 at 4. We are aware
that the circumstances here are somewhat different from those in
prior cases where we found no jurisdiction; in those cases, the
protester typically was challenging issuance of a task or
delivery order to another multiple award contract holder under
the same ID/IQ contract, whereas here, two different ID/IQ
contracts are involved and Cartographics is challenging issuance
of the task order under Photo Science’s contract rather than
under its own. However, this distinction does not change our
decision. It remains that the focus of Cartographics’ protest is
a challenge to the agency’s decision to issue a task order under
an ID/IQ contract, with the dispute centering on which firm
should receive the task order. Section 2304c(d) contains no
exception to the general limitation on our jurisdiction based on
the number of ID/IQ contracts involved in a challenge. (Cartographics,
LLC, B-297121, November 15, 2005) (pdf)
We agree with the Navy that our jurisdiction does not extend to
this case. As L-3 notes, we have held that, where a task- or
delivery-order solicitation issued under an ID/IQ contract
contemplates only a single source selection among the ID/IQ
contractors--that is, a downselection--such that all contractors
except the one that is "downselected" in that single competition
will be excluded from consideration for future task or delivery
orders, our jurisdiction is not precluded. Electro-Voice, Inc. ,
B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD 23 at 5. Our view
is based on the legislative history for FASA, which indicates
that the provisions addressing task- and delivery-order
contracts were intended to encourage the use of multiple-award,
rather than single-award contracts, in order to promote an
ongoing competitive environment in which each awardee would be
fairly considered for each order issued. H.R. Conf. Rep.
No.103-712, at 178 (1994), reprinted in 1994 U.S.C.C.A.N. 2607,
2608; S. Rep. No.103258, at 15-16 (1994), reprinted in 1994
U.S.C.C.A.N. 2561, 2575-76. In light of this context, where an
agency issues a task- or delivery-order solicitation that
essentially abandons the multiple-award, fair-consideration
scheme envisioned under FASA in favor of selecting a single
contractor for future task or delivery orders under the ID/IQ
contract, we will find that there has been a downselection and
review a challenge to the resulting award. While we recognize
that the solicitation language here suggests the possibility of
a downselection, we conclude, for a number of reasons, that the
agency here has not departed from the multiple-award,
fair-consideration scheme contemplated by FASA. First, the
solicitation did not definitively provide that the selected
contractor would be awarded delivery orders for additional
trainers, or that other multiple award contractors would not be
given fair consideration before any future delivery orders were
awarded; rather, the solicitation stated only that the selected
contractor "may" be awarded future delivery orders. Further,
there is some indication in the record that the current and any
future driver trainer requirements could be sufficiently related
such that the future requirements could be determined by the
agency to constitute a "follow-on" requirement, one of the FASA
exceptions under which the agency would not be required to give
fair consideration to other contractors. 10 U.S.C. 2304(c)(b)(3)
(2000). Under these circumstances, we cannot say that there has
been a downselection. We note that L-3 cites in support of its
position an opinion letter issued by our Office, The Federal
Acquisition Streamlining Act (FASA) of 1994--Fair opportunity
procedures under multiple award task order contracts , B-302499,
July 21, 2004. There, however, the successful contractor was
expressly designated as the recipient of all future task orders
that might arise under the category of work competed, with no
provision for fair consideration of the other contractors for
those future orders (or any indication that the future orders
may be found to fall under one of the FASA exceptions). Here, in
contrast, as discussed above, future delivery orders have not
been improperly reserved for the selected contractor, so that
the agency's action was consistent with FASA's statutory scheme.
We therefore conclude that our Office lacks jurisdiction to hear
the challenge to the conduct of the competition for the delivery
order at issue here. (L-3
Communications Company, B-295166, December 10, 2004) (pdf)
In our view, PPDG is complaining about a matter of contract
interpretation. The terms of this contract apportion each task
order to one of two previously defined pools of vendors--either
the small business vendors, or all vendors--depending upon where
the requirement originated. Put simply, when FedSource is
responsible for generating a requirement, the contract limits
eligibility for award of a task order to the small business
vendors; when a vendor is responsible for the requirement, the
contract governs which vendor(s) among the entire range of
vendors will be eligible for the award, depending on the size of
the order, and the size status of the vendor that generated the
requirement. The only dispute here is the agency's
interpretation of the clause to mean that all business
identified under the 1998 contract will be viewed as FedSource-identified
business under this contract. We also disagree with PPDG's
contention that the situation here is analogous to the situation
we addressed in LBM, Inc. , B-290682, Sept. 18, 2002, 2002 CPD
157. In LBM , the protester argued that a task order placed
under a multiple-award ID/IQ contract had previously been set
aside exclusively for small businesses, and could not be
transferred to the multiple-award ID/IQ contract without regard
to the Federal Acquisition Regulation 19.502-2(b) requirements
pertaining to small business set-asides. We concluded that the
limitation on our bid protest jurisdiction was not intended to
preclude a protest raising a challenge to the transfer and
inclusion of work in ID/IQ contracts without complying with
applicable small business laws and regulations. Id. at 4-5. An
essential element of LBM , and of the cases it follows that
reached similar conclusions regarding the statutory limitation
on our jurisdiction to hear protests of task and delivery orders
under multiple-award ID/IQ contracts-- N&N Travel & Tours, Inc.
et al. , B-285162.2, B-285162.3, Aug. 31, 2000, 2000 CPD 146 and
Ocuto Blacktop & Paving Co., Inc. , B284165, Mar. 1, 2000, 2000
CPD 32--is that the protester did not hold one of the ID/IQ
contracts under the umbrella contract, and was unable to
reasonably foresee that work included in the challenged task or
delivery order would be purchased using the multiple-award
contract. PPDG elected to participate in this contract
with full knowledge of the fact that the contract included a
scheme to apportion task orders among vendors based on the
source of the work. PPDG is not arguing that these task orders
are being improperly placed under this contract, in violation of
the Small Business Act, or any other statute or regulation, as
was the case in LBM . Rather, PPDG's argument is with the
agency's apportionment of task orders to small business vendors,
or to all vendors, under the terms of the contract. These
arguments provide no basis to conclude that the limitation on
our bid protest jurisdiction should not apply to this situation.
(Professional Performance Development
Group, Inc., B-294054.3, September 30, 2004) (pdf)
In July
2002, IRS conducted a competitive procedure among the TIPPS-2
contractors to perform OrgMod services. It issued a master
Request for Information (RFI) to all 18 TIPSS-2 contractors,
inviting them to compete for four task areas of the OrgMod work.
The master RFI stated that IRS would select a contractor to
perform the services described within each task area, and that [w]inning
the competition will result in the award of any task order
designated for that particular task area. IRS selected Booz,
Allen & Hamilton (BAH) as the contractor for two of the task
areas, and two other firms (TRW, Inc. and Pragmatics Corp.) for
the other two task areas. The July 2002 RFI has resulted in the
issuance of 37 task orders in the OrgMod task areas (36 task
orders were issued in the two areas awarded to BAH, and one was
issued in TRWs task area).
The relevant provision in FASA states: When multiple [task or
delivery order] contracts are awarded . . . all contractors
awarded such contracts shall be provided a fair opportunity to
be considered, pursuant to procedures set forth in the
contracts, for each task or delivery order in excess of 2,500
that is to be issued under any of the contracts. Here, there is
no evidence that IRS gave any meaningful consideration to other
contractors before issuing every one of the 37 OrgMod task
orders to the pre-selected contractors. The fact that IRS gave
all TIPPS-2 contractors an opportunity to be considered for the
four OrgMod task areas does not satisfy FASAs fair opportunity
requirement, which applies to individual task orders and which
IRS disregarded with respect to the 37 OrgMod task orders
resulting from the master RFI. Because IRS gave no consideration
to any contractor other than the pre-selected contractor for any
of the individual OrgMod orders, we do not view these task
orders as competitively placed, but as unjustified exceptions to
FASAs fair opportunity requirement. By separate letter to the
Commissioner of IRS, we are recommending that the IRS issue
future OrgMod task orders in compliance with FASAs fair
opportunity requirement and, if feasible, terminate existing
OrgMod task orders and issue replacement orders using fair
opportunity procedures. Unless a statutory exception applies,
IRS should give all eligible TIPSS-2 contractors a fair
opportunity to be considered for every OrgMod task order. (The
Federal Acquisition Streamlining Act of 1994 - Fair opportunity
procedures under multiple award task order contracts,
B-302499, July 21, 2004) (pdf)
(Note: This is not a
bid protest but is an opinion in response to a specific request
from Congress.)
In determining whether a task or delivery order (or
modification) is outside the scope of the underlying contract,
and thus falls within CICA’s competition requirement, our Office
examines whether the order is materially different from the
original contract. Evidence of a material difference is found by
reviewing the circumstances attending the original procurement;
any changes in the type of work, performance period, and costs
between the contract as awarded and the order as issued; and
whether the original solicitation effectively advised offerors
of the potential for the type of orders issued. Overall, the
inquiry is whether the order is one which potential offerors
would have reasonably anticipated. Anteon Corp., supra, at ____.
By their very nature, ID/IQ contracts provide agencies with the
flexibility to procure requirements that they are unable to
precisely identify at the time of award. As a consequence, the
fact that the contracts did not specify the precise work called
for on the MOHAWK’s life rafts is not dispositive as the
protester suggests. Rather, given the broad range of potential
services identified in the ID/IQ contracts’ scope of work, as
well as the fact that the value of the entire task order (of
which the life raft work was only a small portion) was $227,088,
well under the $500,000 estimated value for task orders
identified in the scope of work, we think that the inspection
and repair work on the MOHAWK’s life rafts reasonably would have
been anticipated by potential offerors and therefore did not
fall outside the scope of the ID/IQ contracts. (Specialty
Marine, Inc., B-293871; B-293871.2, June 17, 2004) (pdf)
As noted above, the Smart Card contract identified an IC chip
card, card readers, driver software, and support services, such
as a card security and inventory control system, and program
integration and management services. In contrast, the TOR seeks
to procure IC chip inlays, cloth passport covers, passport
readers, adhesive, an inventory control system, travel, and
technical support for such things as development, testing, and
operations. Of these requirements, only the readers, technical
support, and inventory control system appear to be within the
scope of the Smart Card contract, which identifies similar (or
identical) deliverables. The remaining items--the passport
covers, IC chip inlays, adhesive, and travel--are outside the
scope of the contract for the reasons discussed below. With
regard to the passport covers and IC chip inlays, we note
significant physical differences between the TOR and the Smart
Card contract. The Smart Card contract specifies that the IC
chip card (i.e., Smart Card) shall be a credit card-sized
plastic plate that complies with the standards for such cards.
In this regard, the Smart Card’s dimensions, and the materials
used for its manufacture, are considerably different from those
of the cloth electronic passport cover sheet (with inlay) at
issue here. Although GSA argues that the inlays are physically
the same as the Smart Card because the inlay consists of a
pre-laminate IC chip with antenna (as does the Smart Card), we
note that the inlay itself bears no resemblance to a plastic
plate, even before it is affixed to a cloth passport cover,
which is also included in this purchase. Moreover, the TOR
contemplates the purchase of only 650 stand-alone inlays, with
the remainder embedded into as many as 162 million passport
covers. Simply put, we do not think that potential contractors
for the manufacture of cloth passport covers with electronic
inlays could have anticipated the use of the original Smart Card
contract for this purpose. In addition to
the physical differences between the plastic plates envisioned
by the Smart Card contract, and the inlays to be used in the
passport covers here, the TOR includes peripheral goods and
services, including adhesive and travel, which cannot reasonably
be found to be within the scope of GSA’s Smart Card contract. In
addition, these items appear to be of more than nominal value.
As noted above, the TOR contemplates the purchase of sufficient
adhesive to adhere approximately 162 million book covers to the
end page (or 54 million book cover sheets), plus additional
adhesive necessary for spoilage. This equates to more than 250
55-gallon drums of liquid adhesive. TOR at B-13. The TOR does
not specify the amount of travel contemplated, but given the
3-phases of the electronic passport program (systems
development, pilot program implementation, and full-scale
implementation throughout the United States), which includes up
to 4,000 hours of technical services, ultimately leading to the
production of millions of passports, travel under this TOR does
not appear to be insignificant. (Anteon
Corporation, B-293523; B-293523.2, March 29, 2004) (pdf)
In determining whether a task order is beyond the scope of the original contract, we
look at whether there is a material difference between the task order and that
contract. Evidence of such a material difference is found by reviewing the
circumstances attending the procurement that was conducted; examining any
changes in the type of work, performance period, and costs between the contract as
awarded and as modified by the task order; and considering whether the original
contract solicitation adequately advised offerors of the potential for the type of task
order issued. Id. The overall inquiry is whether the task order is of a nature that
potential offerors would reasonably have anticipated. See Makro Janitorial
Servs.,
Inc., B-282690, Aug. 18, 1999, 99-2 CPD ¶ 39 at 3. (Symetrics Industries,
Inc., B-289606, April 8, 2002 (pdf)
) (pdf)
Specifically, while we recognize
that this challenge focuses on, and is triggered by, the
decision to use a task order under GSA's ID/IQ contract to
procure travel services at Travis AFB, this complaint, in
essence, raises the question of whether the solicitation for the
underlying ID/IQ contracts properly included Travis despite the
claimed independent requirement to reserve the Travis effort for
small businesses. Thus, as discussed in greater detail below, we
conclude that the small business protesters are mounting a
challenge to the terms of the underlying solicitation, and that
the limitation on our bid protest jurisdiction in 10 U.S.C.
sect. 2304c(d) therefore does not apply to this protest. Since
we are charged by statute with reviewing protests alleging that
a solicitation does not comply with applicable procurement
statutes and regulations, 31 U.S.C. sect.sect. 3552, 3554(b)(1),
we conclude that this portion of the protest is properly within
our bid protest jurisdiction. Ocuto Blacktop & Paving Co.,
Inc., B-284165, Mar. 1, 2000, 2000 CPD para. 32 at 4-5. (N&N
Travel & Tours, Inc.; BCM Travel & Tours; Manassas
Travel, Inc.;, B-285164.2; B-285164.3, August 31, 2000)
While we recognize that Ocuto's
challenge, on its face, focuses on the landfill project at the
former Griffis AFB, Ocuto's complaint, in essence, raises the
question of whether the solicitation for the underlying ID/IQ
contracts properly includes environmental remediation work at
closing military installations in light of the statutory
requirement to provide a preference for such work to businesses
located in the vicinity of these installations. Thus, Ocuto is
mounting a challenge to the terms of the underlying
solicitation, not--as the Corps argues--a challenge to a
delivery order, and the limitation on our bid protest
jurisdiction in 10 U.S.C. sect. 2304c(d) therefore does not
apply. Since we are charged by statute with reviewing protests
alleging that a solicitation does not comply with applicable
procurement statutes and regulations, see 31 U.S.C. sect.sect.
3552, 3554(b)(1) (1994), we conclude that Ocuto's protest is
properly within our bid protest jurisdiction. (Ocuto
Blacktop & Paving Company, Inc., B-284165, March 1,
2000)
The legislative history concerning
the provisions of FASA treating task and delivery order
contracts indicates that they were intended to encourage the use
of multiple-award task or delivery order contracts, rather than
single-award task or delivery order contracts, in order to
promote an ongoing competitive environment in which each awardee
was fairly considered for each order issued. H.R. Conf. Rep. No.
103-712, at 178 (1994), reprinted in 1994 U.S.C.C.A.N. 2607,
2608; S. Rep. No. 103-258, at 15-16 (1994), reprinted in 1994
U.S.C.C.A.N. 2561, 2575-76. Thus, contrary to the protester's
position, the fact that the statute contains a restriction on
protests of the issuance of task orders does not mean that the
agency has improperly chosen a task order as a contract vehicle
in order to avoid our Office's review. Rather, the
restriction on protests is part and parcel of the statutory
scheme. (United
Information Systems, Inc., B-282895; B-282896, June 22,
1999)
Here, the delivery order
contracts issued to Electro-Voice and Specialty Plastic
contemplated orders to both contractors only for the initial
delivery of the PDMs
for the downselection process; once the downselection decision
was made, only the
selected contractor would receive orders for the agency's
production requirements.
That is, once the downselection of a contractor is made, there
will be no ongoing
competition for orders among the multiple award contractors as
envisioned by
FASA. The placement of the delivery order for the initial
production quantity of
helmets was merely the vehicle that implemented the
downselection decision.
Therefore, the restriction on protests of the placement of
orders contained in 10
U.S.C. § 2304c(d) does not bar Electro-Voice's protest of the
downselection
decision. (Electro-Voice, Inc.,
B-278319, B278319.2, January 15, 1998) (pdf)
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