New Turning to Discover’s allegation that Triple-i’s quotation should have been found “Not Satisfactory” or “noncompliant” based on the web hosting vendor’s alleged noncompliance with FISMA, the agency responds that there was no basis for such a finding because the solicitation did not contemplate the consideration of whether a vendor’s approach was compliant with FISMA prior to performance. Supp. Mem. of Law at 2-3. In this regard, the agency points out that nothing in the solicitation required vendors to demonstrate or provide proof that their systems qualified as FISMA compliant at the time that quotations were submitted. Id. Rather, the agency continues, vendors were to describe their approach for maintaining security‑‑consistent with the applicable federal standards and guidance‑‑during performance of the requirement. Supp. Mem. of Law at 2-3. The agency also points out that, consistent with this framework, the solicitation’s provisions regarding FISMA, and other information security guidance and standards, refer to the “contractor,” rather than the “vendor,” “quoter,” or other term connoting an entity’s pre-source-selection status. See id. at 3 (citing RFQ at 19-20, 35).

For the reasons discussed below, we agree with the agency that the terms of the solicitation here provide no basis to find that the agency should have assessed Triple-i’s quotation as “Not Satisfactory” or “noncompliant” with the solicitation. At the outset, however, we observe that where, as here, an agency issues an RFQ to GSA FSS contractors under FAR subpart 8.4 and conducts a competition, we will review the record to ensure that the agency’s evaluation is reasonable and consistent with the terms of the solicitation and applicable procurement laws and regulations. See Digital Solutions, Inc., B-402067, Jan. 12, 2010, 2010 CPD ¶ 26 at 3-4; DEI Consulting, B-401258, July 13, 2009, 2009 CPD ¶ 151 at 2. A protester’s disagreement with the agency’s judgment, without more, does not establish that an evaluation was unreasonable. See DEI Consulting, supra.

Here, although the solicitation’s evaluation criteria included consideration of a vendor’s approach to ensuring security, the criteria did not require a showing of current compliance with FISMA or other information security standards.[4] See RFQ at 49-50. Further, the solicitation provisions that reference FISMA and the other information security standards refer to the “contractor’s” performance after the BPA has been established. Id. at 12, 19-20, 35. Requirements such as this, which impose obligations on the “contractor,” are performance requirements that need not be met before the source selection decision; therefore, whether Triple-i ultimately performs in a way that meets the requirement is a matter of contract administration, which our Office will not review. See 4 C.F.R. § 21.5(a) (2016); HS Support, B‑409937, Sept. 18, 2014, 2014 CPD ¶ 276 at 3; Freedom Sci., Inc., B‑401173.3, May 4, 2010, 2010 CPD ¶ 111 at 3. In sum, the record reflects that there was no basis for the agency to have evaluated Triple-i’s quotation as not satisfactory or noncompliant, as Discover alleges should have been done. We therefore deny this basis of protest.  (Discover Technologies LLC B-412773, B-412773.2: May 27, 2016)  (pdf)

Ashland protested the award to the agency, complaining that Creighton was not registered in the E-Verify system as required by the RFP. Among other things, Ashland asserted that Creighton had been awarded other contracts by the same contracting activity containing the same employment eligibility verification clause, and had not enrolled in the E-Verify system as required. DLA denied Ashland’s agency-level protest, and Ashland protested to our Office.

Our Office considers bid protest challenges to the award or proposed award of contracts. 31 U.S.C. § 3552 (2006). Therefore, we generally do not review matters of contract administration, which are within the discretion of the contracting agency and for review by a cognizant board of contract appeals or the Court of Federal Claims. 4 C.F.R. § 21.5(a) (2013); Colt Defense, LLC, B-406696.2, Nov. 16, 2012, 2012 CPD ¶ 319 at 5; Ceradyne, Inc., B-402281, Feb. 17, 2010, 2010 CPD ¶ 70 at 3 n.4; see also Kitco, Inc., B-221386, Apr. 3, 1986, 86-1 CPD ¶ 321 at 9.

Here the solicitation required contractors not enrolled in the E-Verify system at the time of contract award to enroll within 30 calendar days thereof (which Creighton did). We find this postaward requirement, which applies to contractors, to be a matter of contract administration having no effect upon the validity of an award. See Deere & Co., B-224275, Oct. 31, 1986, 86-2 CPD ¶ 504 at 4. The fact that a contractor’s actual compliance with E-Verify requirements would thereby escape our review, as Ashland contends, does not constitute a valid reason to ignore the statutory limits of our bid protest jurisdiction.

Ashland does not dispute that Creighton enrolled in the E-Verify program within 30 days of the contract award here. Rather, the protester argues that DLA was prohibited from contracting with Creighton because of the awardee’s previous noncompliance with applicable E-Verify requirements. As a result, Ashland argues, Creighton’s proposal was technically unacceptable under the terms of the solicitation and ineligible for award. Protest at 2-5. While we do not condone Creighton’s prior failure to enroll in the E-Verify system as required, we find this does not render its proposal here technically unacceptable, nor is contract award otherwise precluded by any procurement statute or regulation.  (Ashland Sales & Service Company B-408969, Nov 1, 2013)  (pdf)

As a preliminary matter, the Forest Service questions our jurisdiction to decide the protest, arguing that the modification of a [blanket purchase agreement] BPA concerns a matter of contract administration that is beyond the scope of our bid protest function. See AR at 6-7. The agency contends that our jurisdiction in this regard is limited to whether a modification triggers competition requirements where there is a material difference between the modified contract and the contract as originally awarded. Id., citing, inter alia, DOR Biodefense Inc.; Emergent BioSolutions, B-296358.3, B-296358.4, Jan. 31, 2006, 2006 CPD ¶ 35 at 6. The Forest Service maintains that not only is a BPA not a contract, but that the protested modification does not change the scope of work and only represents a foreseeable, annual change in price rankings. See id. at 7, citing, inter alia, Crewzers Fire Crew Transport, Inc., v. United States, 98 Fed. Cl. 71, 79 (2011) (BPA not a contract but merely framework for future contracts).

Under the Competition in Contracting Act of 1984 (CICA) and our Bid Protest Regulations, we review protests of alleged violations of procurement statues and regulations by federal agencies in the award or proposed award of contracts for the procurement of goods and services, and solicitations leading to such awards.[8] 31 U.S.C. §§ 3551, 3552 (2006); 4 C.F.R. § 21.1(a) (2012). We have found our jurisdiction to encompass objections to agency actions that result in the “award” of instruments that are not in themselves contracts, such as blanket purchasing agreements, which give rise to a binding contract when an order is placed, or rate tenders, which become binding when a government bill of lading is issued. See C&B Constr., Inc., B-401988.2, Jan. 6, 2010, 2010 CPD ¶ 1 (BPA protest);[9] Abba Int’l, Inc. et al., B-311225.4, Feb. 2, 2009, 2009 CPD ¶ 28 at 4 (rate tender protest); Humco, Inc., B-244633, Nov. 6, 1991, 91-2 CPD ¶ 431 at 3, recon. denied, Department of State--Recon., B-244633.2, Apr. 2, 1992, 92-1 CPD ¶ 339 at 3 (CICA’s broad authority extends to protests of procurements and encompasses acquisition of tenders of service).

Because the price evaluation formula here forms the basis for the placement of orders under the terms of the BPA, our Office will consider the protest of the agency’s modification of the BPA’s formula. In this respect, although the BPA itself is not a contract, the terms of the BPA and the agency’s ordering procedures provide that the vendor that submits the lowest evaluated price will be the vendor first in line to receive orders. Crewzers’ BPA at 35-36; see also Department of State, supra, at 3 (jurisdiction to decide protest of award of tender of service agreement where offeror submitting lowest-price will be first carrier in line for issuance of government bills of lading under solicitation’s source selection criteria and agency procedures); Abba Int’l, Inc. et al. supra at 4-5 (considering protest of request for competitive rate tenders that will form basis for placement of government bills of lading); Biblia, Inc., B-403006, Sept. 13, 2010, 2010 CPD ¶ 203 at 3 (jurisdiction over protest of issuance of government bill of lading for one-time shipment where agency issues formal solicitation, provides evaluation factors, and makes best value source selection decision).  (Crewzers Fire Crew Transport, Inc., B-406601, Jul 11, 2012)  (pdf)

Solar Plexus alleges that the award was improper because Oasis Montana is not a registered construction contractor and, according to Solar Plexus, Montana law requires a company to be registered as a construction contractor in order to complete the installation of the solar-powered systems sought under the RFP. Solar Plexus asserts that the award is therefore in violation of the RFP, which states that “[t]he Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.” RFP at 41. Solar Plexus also cites the RFP’s “Permits and Responsibilities” clause, Federal Acquisition Regulation sect. 52.236-7, which states that “[t]he Contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work.” Id. at 43.

The protester’s arguments provide no basis to sustain the protest. Although the RFP calls for compliance with state law through its “Permits and Responsibility” and other similar clauses, normally, general solicitation provisions mandating that the “contractor” comply with the requirements of state laws, codes, and regulations do not require that a bidder or offeror demonstrate compliance prior to award. Mid-America Mgmt. Servs., Inc., B-244103, June 5, 1991, 91-1 CPD para. 537 at 1‑2. Rather, compliance with applicable state or local requirements is a performance requirement that may be satisfied during contract performance and does not affect the award decision except as a general responsibility matter. HAP Constr., Inc., B‑278515, Feb. 9, 1998, 98-1 CPD para. 48 at 2‑3. Whether Oasis Montana ultimately complies with the requirements of the RFP is therefore a matter of contract administration which we will not review. 4 C.F.R. sect. 21.5(a). As such, Solar Plexus’ arguments provide us with no basis to question the agency’s award decision.  (Solar Plexus, LLC, B-402061, December 14, 2009) (pdf)

BP's award for Item 0207 was made at the price of $2.881704 per gallon. In accordance with the solicitation's partial small business concern set-aside procedures, Petro Star was then awarded the set-aside volume for Item 0207, at its offered price of $2.825179. This award was made on September 18. Petro Star began performance shortly thereafter and it has made a delivery of fuel under the contract.

On October 6, Petro Star filed an agency-level protest with DESC, which was dismissed as untimely. On February 17, 2009, Petro Star filed a protest with our Office alleging that under Clause I237.06 (quoted above) DESC should have permitted Petro Star to increase its proposed price for the set-aside portion to match BP's higher price for the unrestricted portion. What Petro Star seeks here is an increase in its contract price, that is, reformation of its contract. This is a matter of contract administration for which our Office does not have jurisdiction.[2] FruCon Construction Corp., B-253882, Oct. 1, 1993, 93-2 CPD para. 200 at 4-5. Our Office considers bid protest challenges to the award or proposed award of contracts. 31 U.S.C. sect. 3552 (2006). In exercising this authority, we do not review matters of contract administration (with exceptions not relevant here), which are within the discretion of the contracting agency and are, under the Contract Disputes Act of 1978, for review by a cognizant board of contract appeals or the Court of Federal Claims. Bid Protest Regulations, 4 C.F.R. sect. 21.5(a) (2008); Hawker Eternacell, Inc., B-283586, Nov. 23, 1999, 99-2 CPD para. 96 at 3.  (Petro Star, Inc., B-401108, April 29, 2009)  (pdf)

Where, as here, an agency uses parallel contracts for the development and production of products to conduct a competition among the contractors resulting in the elimination of one or more contractors as sources for the agency’s requirements for the duration of the contracts in question, we will consider protests concerning that competition and the decisions to eliminate contractors. Electro-Voice, Inc., B‑278319, B-278319.2, Jan. 15, 1998, 98-1 CPD para. 23 at 5; Fermont Div., Dynamics Corp. of Am., B-257373.3, et al., Dec. 22, 1995, 96-1 CPD para. 78 at 1-2 n.1; Mine Safety Appliances Co., B-238597.2, July 5, 1990, 90-2 CPD para. 11 at 4; see Westinghouse Elec. Corp., B-189730, Mar. 8, 1978, 78-1 CPD para. 181 at 6. In the above cited cases, there was a “downselection” of a contractor based on a limited competition among the contract holders, as contemplated by the terms of the parallel contracts, and this downselection was implemented by issuing or not issuing delivery orders under the contracts, or exercising or not exercising contract options. Here, the agency is using the options under these contracts to determine which firms will continue to be considered for GPO’s procurement of electronic passport covers. Options corresponding to the pilot program would be exercised on a go/no-go basis based on passing the Stage 2 tests. RFP sect. C1.2.6. Ultimately, the agency would select one primary production contractor and secondary production contractors based on a best-value determination. Agency Report at 2, 8; RFP sect. C1.2.8. Thus, this is a limited competition between the firms awarded contracts under the RFP. While GPO argues that the decision protested is a matter of contract administration because OTI was eliminated from further consideration after it was awarded a contract, the substance of what is occurring--regardless of its contractual form--is a multi-step competition for a contract to produce electronic passport covers. Because OTI timely protested its elimination from that competition, we conclude that our Office has jurisdiction to consider the protest. In considering protests against an agency’s evaluation resulting in a downselection, we do not evaluate competing technical solutions anew in order to make our own determinations as to their acceptability or relative merits. Instead, we examine the record to determine whether the evaluation was fair, reasonable, and consistent with stated evaluation factors. Electro-Voice, Inc., supra, at 5-6. (OTI America, Inc., B-295455.3; B-295455.4, August 10, 2005) (pdf)

Indeed, far from possible acts of bad faith on the part of government officials, it appears that the agency had no knowledge of the inaccuracies in WorldCom's financial statements until after award, thus making this matter more one of contract administration (a matter beyond our bid protest authority, 4 C.F.R. § 21.5(a)), rather than a protest of the agency's award decision.  While we recognize that the protests were timely filed within 10 days of WorldCom's initial public disclosure, we nevertheless have reservations in the unusual circumstances present here about the appropriateness of our Office considering a protest filed well after award and after contract performance has begun, particularly where, as here, the agency has authority to address the alleged impropriety as part of contract administration.  (Sprint Communications Company LP; Global Crossing, B-288413.11; B-288413.12, October 8, 2002)

The primary contention in MAS's protests is that the awards under these RFQs breach MAS's requirements contract, which assertedly contemplates that these services would be provided by MAS. The Navy responds that these services were not required to be ordered under that contract. Resolving this issue would require interpreting MAS's existing contract and determining whether the Navy's actions constituted a contract breach, which are matters of contract administration. Under the Competition in Contracting Act of 1984, our jurisdiction to resolve bid protests extends to resolving disputes concerning the alleged violation of procurement laws and regulations in connection with the award of contracts by federal agencies. 31 U.S.C. §§ 3551-3552 (2000). In exercising this authority (with exceptions not relevant here), we do not review matters of contract administration, which are within the discretion of the contracting agency and are, under the Contract Disputes Act of 1978, for review by a cognizant board of contract appeals or the Court of Federal Claims. 4 C.F.R. § 21.5(a) (2002); Hawker Eternacell, Inc., B-283586, Nov. 23, 1999, 99-2 CPD ¶ 96 at 3. Thus, we will not review the parties' dispute concerning whether these services were required to be ordered under MAS's requirements contract.  (Military Agency Services Pty., Ltd., B-290414; B-290441; B-290468; B-290496, August 1, 2002)  (pdf)

Our Office will not consider an incumbent contractor's protest of an agency's refusal to exercise an option under an existing contract since this decision is a matter of contract administration outside the scope of our bid protest function. American Consulting Servs., Inc., B-276149.2, B-276537.2, July 31, 1997, 97-2 CPD para. 37 at 9. We will not consider the matter even where, as here, the protester alleges that the agency's decision to not exercise an option in its contract was made in bad faith. Walmac, Inc., B-244741, Oct. 22, 1991, 91-2 CPD para. 358 at 2.  (Jones, Russotto & Walker, B-283288.2, December 17, 1999)

1. Contract Administration Issues Must Be Brought as CDA Claims

The first two counts of the complaint are challenges to the substance of the Air Force CPAR. In the first count, ITility alleges that the assessment of its contract performance “includes inaccurate and misleading facts, as well as material omissions,” Compl. ¶ 43, in violation of 48 C.F.R. § 42.1503(b), Compl. ¶ 42. In the second count, plaintiff contends that the official who reviewed the assessment failed to “consider disagreements between the parties,” in violation of 48 C.F.R. § 42.1503(d), and failed to ensure that the record contained accurate information based on objective facts, reiterating the alleged violation of 48 C.F.R. § 42.1503(b). See Compl. ¶¶ 52–55. Because these counts allege violations of a regulation in connection with a procurement, ITility maintains that they may be brought under our court’s 28 U.S.C. § 1491(b)(1) bid protest jurisdiction.

There are several problems with this argument. Perhaps the most fundamental problem is that, while the CPAR was indeed created “in connection with a procurement,” 28 U.S.C. § 1491(b)(1), the procurement in question was one in which ITility performed as the contractor, not one in which plaintiff was merely an offeror or prospective offeror. As the Court has explained, see Kellogg Brown & Root Servs., Inc. v. United States, 117 Fed. Cl. 764, 768–69 (2014), a long line of our cases has held that the “interested party” standing to bring a bid protest does not extend to the complaints of contractors concerning the administration of contracts they have been awarded and performing. When a party objects to a decision by a federal agency that was made because that party was a government contractor, and not because the party was an offeror for a contract to be awarded, then the matter is properly viewed as seeking “relief arising under or relating to the contract” held by the party, 48 C.F.R. § 2.101, rather than presenting a circumstance in which the party’s “direct economic interest would be affected by the award of the contract or by failure to award the contract,” 31 U.S.C. § 3551(2). Although a procurement may run through “contract completion and closeout,” see Distributed Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (quoting what was then 41 U.S.C. § 403(2), now found at 41 U.S.C. § 111), the impact of a contract award (or the failure to award) ceases to be relevant once a party becomes the contractor for that procurement. At that stage, the interest of the party changes from that of an offeror to that of a contractor, and the CDA becomes the vehicle for resolving disputes. See Kellogg Brown & Root Servs., 117 Fed. Cl. at 769–70.

That a contractor’s challenge to the substance of an agency’s performance evaluation may be brought as a CDA claim is beyond doubt. In Todd Construction, L.P. v. United States, 656 F.3d 1306 (Fed. Cir. 2011), the Federal Circuit held that such a challenge constituted a claim for CDA purposes, as it related to the federal contract. Id. at 1311–16. ITility attempts to distinguish Todd Construction as turning on the declaratory relief sought, in contrast to the injunction it seeks in this matter. See Pl.’s Opp’n at 3 (citing Todd Constr., 656 F.3d at 1311). But while the Federal Circuit did describe the relief sought as “in essence a declaratory judgment that the government’s performance evaluations were unfair and inaccurate,” Todd Constr., 656 F.3d at 1311, and did leave undecided “whether an injunction was available pursuant to the . . . ‘power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just,’” id. at 1311 n.3 (quoting 28 U.S.C. § 1491(a)(2)), the Circuit’s analysis did not concern the type of relief at issue, see id. at 1311–15. Instead, the subject of the relief sought was what mattered, as the Circuit found that “the unsatisfactory performance evaluations . . . relate to Todd’s performance under the contract,” and concluded that a valid CDA claim was one that “relates to [the contractor’s] performance under the contract.” Id. at 1313–14.

In any event, even if injunctive relief were not available under the CDA, a contractor does not convert a dispute relating to its contract performance into a bid protest by seeking such relief. As the Court explained above, the claim could still not rest on the interested party standing of an offeror. If Congress chose to withhold a form of relief from contractors in their disputes with government agencies, their recourse is to accomplish what they may with the tools that are given. For instance, a declaration that a CPAR was arbitrarily issued and contained inaccurate information could be communicated to procurement officials in subsequent contract competitions, and would set the stage for injunctive relief in a bid protest if that CPAR is relied upon to an offeror’s prejudice.

Moreover, if plaintiff’s request for injunctive relief addressing the alleged substantive inaccuracies of the Air Force CPAR were to place the matters outside our court’s CDA jurisdiction, the relief would still not be available in a bid protest. In considering a challenge to an agency’s failure to assess a contractor’s rebuttals to its performance evaluations, the Federal Circuit held that “a bid protest is not the proper forum, under FAR § 42.1503(b), to litigate [performance evaluation] disputes.” Bannum, Inc. v. United States, 404 F.3d 1346, 1353 (Fed. Cir. 2005). Although the procedural challenge to the evaluations was found to be properly brought in a bid protest, the substantive challenge was not. Id. at 1351–53.

(sections deleted)

As explained above, plaintiff’s challenges to the substance of the Air Force CPAR involve questions of contract administration that must be brought under the CDA. Since ITility had not submitted a claim to the contracting officer under the CDA’s requirements, see 41 U.S.C. § 7103(a), our court lacks subject-matter jurisdiction over the first two counts of the complaint. See Kellogg Brown & Root Servs., 117 Fed. Cl. at 770.  (ITility, LLC, v U. S., No. 15-237C, January 7, 2016)  (pdf)

Here defendant-intervenors asseverate that jurisdiction is lacking because, inter alia, plaintiffs’ claims raise questions of contract administration not properly considered in a bid protest context. See Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-09; see generally, Francis M. Allegra & Daniel B. Garrie, “Plugged In: Guidebook to Software and the Law,” § 11:2 (2015).

The United States, of course, “is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Dolan v. U.S. Postal Serv., 546 U.S. 481, 498 (2006); Hercules, Inc. v. United States, 516 U.S. 417, 422 (1996). As such, this court is required to dismiss a complaint in cases where it finds that it lacks subject matter jurisdiction. RCFC 12(h)(3); Smith v. United States, 495 Fed. Appx. 44, 47 (Fed. Cir. 2012), cert. denied, 133 S. Ct. 1288 (2013) (“If the Court of Federal Claims determines at any time that it lacks subject matter jurisdiction, it must dismiss the action.”); Trailboss Enters. Inc. v. United States, 111 Fed. Cl. 338, 340 (2013); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Section 1491(b)(1) grants this court “jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1); see RAMCOR Serv. Group, Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999).

Despite the arguably broad language of this subsection, “the Federal Circuit has made it crystal clear” that matters of contract administration are beyond this court’s bid protest jurisdiction. Gov’t Technical Servs., LLC v. United States, 90 Fed. Cl. 522, 527 (2009).9 The CDA, rather, is the “exclusive mechanism” to resolve disputes of this sort. Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995); see also Wildflower Intern., Ltd. v. United States, 105 Fed. Cl. 362, 383 (2012); Harris Patriot Healthcare Solutions, LLC v. United States, 95 Fed. Cl. 585, 594-95 (2010). Thus, for example, this court has held that it does not possess jurisdiction pursuant to section 1491 to enjoin a contracting agency’s termination of a contract, Data Monitor Sys., Inc. v. United States, 74 Fed. Cl. 66, 71-72 (2006), and that a government failure to exercise an option raises issues of contract administration outside the court’s bid protest jurisdiction, Jones Automation, 92 Fed. Cl. at 371-72. As recently adumbrated by Judge Wolski –

when a party brings a challenge in our court to an agency action which affects that party because it is a contractor and not because it is (or might be) an offeror, the only vehicle it may use is the CDA. Although most federal contractors were at one point offerors for the contracts they received, once the contracts are awarded their interests in disputes with the government are those of contractors, not offerors.

Kellogg Brown & Root Servs., 117 Fed. Cl. at 769; see also Gov’t Tech. Servs., 90 Fed. Cl. at 526 (holding that defendant’s failure to exercise an option is governed by the CDA, 41 U.S.C. § 601-31 [now codified at 41 U.S.C. § 7101 et. seq.], and is not a bid protest); Am. Consulting Servs., Inc., 97–2 C.P.D. ¶ 37 (1997) (“agency’s decision whether to exercise an option is a matter of contract administration outside the scope of our bid protest function.”)

So are the cases in question ones involving contract administration or are they, instead, appropriately viewed as bid protests? In the court’s view, the former is demonstrably the case for several reasons. These cases arose from, and reflect, the agency’s exercise of its discretion, limited primarily, if not exclusively, by the express terms in the original 2009 task orders, especially Clause H.4, thereof. The award-term extensions added more work to the existing contract only in the context of those task order provisions – but nothing more. There is no change in scope either measured by the law or the procedures set forth in the contract so as to trigger this court’s jurisdiction. See AT&T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir. 1993); CI², Inc., 11-2 B.C.A. ¶ 34823 (2011); cf. Magnum Opus Techs., Inc. v. United States, 94 Fed. Cl. 512, 522 (2010).11 Consistent with the cases cited above, claims like those made by plaintiffs may only be brought under the CDA, subject to the limitations associated with that statute.

To otherwise treat the award-term extensions as new contracts elevates form over substance, essentially creating a potential flock of claims unenvisioned by this court’s bid protest jurisdiction. See Jones Automation, 92 Fed. Cl. at 371-72; Gov’t Tech. Servs., 90 Fed. Cl. at 526. The same can be said of plaintiffs’ claims to invoke the Competition in Contracting Act (CICA), 10 U.S.C. § 2304, as modified by other applicable procurement statutes. These statutes afford plaintiffs no relief, under the circumstances available. In the court’s view, as emphasized in the oral argument of this case, plaintiffs’ view of the court’s jurisdiction “would unlock a veritable Pandora’s box of bid protest challenges to many internal agency decisions that never ripen into government procurements . . . ,” potentially allowing protests of “every agency decision not to procure a product or service.” Int’l Genomics Consortium, 104 Fed. Cl. at 677-78; see also VFA, Inc. v. United States, 118 Fed. Cl. 735, 743 (2014). That this court will not allow.

At least some of plaintiffs particularly err in characterizing the CO decision not to issue an award-term extension under H.4 as one excluding certain contractors from a supposed “competitive range” determination under FAR 15.306(c). Contrary to plaintiffs’ claims, there was no competitive range determination made here, no discussions and, for that matter, none of the other features typical of a negotiated procurement here. The concept of “competitive range” envisioned under FAR 15.306(c) particularly does not encompass internal agency decisions applicable to different contracts with respect to different multiple-award contract holders. Rather, it refers to the development of a process solely intended to reduce the number of offerors – a process of source selection that did not occur here.

Not surprisingly, this case thus does not involve other typical FAR concepts like “past performance,” “discussions,” “disparate treatment,” and other aspects of the regulatory spectrum that plaintiffs have attempted to diffuse awkwardly into this procurement case.12 See generally, John Cibinic, Jr., Ralph C. Nash, Jr. & Christopher R. Yukins, Formation of Government Contracts 784-85, 845-58 (4th ed. 2011). There were no technical proposals here, no price proposals, nor any other form of related source-selection evaluation. Id. at 757-70, 937. Nor should there have been, given the agency’s directives and intentions. That the regulatory terms in the FAR invoked by plaintiffs mismatch those that plaintiffs would wield in seeking to invoke this court’s jurisdiction, provides strong evidence that the latter does not represent a warranted invocation of this court’s jurisdiction.

Other disjointed concepts invoked by plaintiffs suffer the same fate. For example, contrary to several of plaintiffs’ claims, this case does not involve so-called “down-select contracts.” Performing a “down-select” is the process through which multiple contractors and/or subcontractors are eliminated, leaving a remaining contractor to fulfill the order.13 This court has exercised bid protest jurisdiction when “the agency has entered into identical multi-award contracts that essentially involve a competition in stages to develop a new product, and ultimately to procure that product, and the protest concerns objections to the agency’s actions in eliminating one of the competitors at an intermediate stage.” OTI Am., Inc. v. United States, 68 Fed. Cl. 108, 114 (2005). But, the TOs did not involve developing or procuring a new product through stages of competition, and the award-term extension was not the ultimate procurement.

The purpose of the TOs was to procure the PCAs’ performance of debt collection services starting in 2009, not to evaluate the PCAs’ performance over the last five and half years just to decide which contractor(s) would receive an award-term extension. The agency was free to issue award-term extensions to all of the qualifying contractors; there was no competition or “winnowing” of the candidates required or intended by the agency. See OTI, 68 Fed. Cl. at 117; see also Electro-Voice, Inc., 98-1 C.P.D. ¶ 23 (Comp. Gen. Jan. 15, 1998).

Having considered and reviewed the remainder of plaintiffs’ jurisdictional arguments, the court does not find them persuasive.14 Instead, the court finds that defendant and defendant-intervenors are correct in asserting that this case involves matters of contract administration, requiring the court to dismiss this case for lack of jurisdiction.  (Coast Professional, Inc., National Recoveries, Inc., Enterprise Recovery Systems, Inc., Pioneer Credit Recovery, Inc. v. U. S. and Financial Management Systems, Inc., Account Control Technology, Inc., Continental Service Group, Inc., Windham Professionals, Inc., GC Services LP, Nos. 15-207C, 15-242C, 15-249C and 15-265C, April 22, 2015)  (pdf)

In this case, plaintiff, of course, is objecting to neither a solicitation nor a proposed or actual award of a contract. Rather, it predicates jurisdiction on the notion that it is asserting “an alleged violation of a statute or regulation in connection with a procurement or proposed procurement.” However, in Gov’t Tech. Servs. LLC v. United States, 90 Fed. Cl. 522, 527-28 (2009), this court squarely held that the government’s failure to exercise an option is not an action covered by section 1491(b)(1), but rather is a matter of contract administration reviewable, if at all, under the Contract Disputes Act, 41 U.S.C. §§ 601-13. In so holding, this court soundly rejected the notion that a plaintiff could elect between raising its claim under the CDA or as a bid protest, finding that “the Federal Circuit has made it crystal clear that the CDA is the ‘exclusive mechanism’ for the resolution of disputes arising, as here, in contract management.” Gov’t Tech. Servs., 90 Fed. Cl. at 528 (citing Dalton v. Sherwood Van Lines, Inc., 50 F.3d 1014, 1017 (Fed. Cir. 1995)).

The view that this court’s bid protest jurisdiction does not extend to cases such as this is bolstered by a number of decisions of the General Accountability Office (GAO) holding that an agency’s decision not to exercise an option is not a “procurement” decision within its bid protest jurisdiction, as defined in 31 U.S.C. §§ 3551-52. See Am. Consulting Servs., Inc., 97-2 C.P.D. ¶ 37 (1997) (“To the extent ACS challenges the agency’s refusal to exercise the final option of its FAST contract, this issue is not for our review since a contracting agency’s decision whether to exercise an option is a matter of contract administration outside the scope of our bid protest function.”); Fjellestad, Barret and Short, 92-2 C.P.D. ¶ 118 (1992); U.S. Defense Sys., Inc., 92-2 C.P.D. ¶ 179 (1991); Young-Robinson Assocs., Inc., 91-1 C.P.D. ¶ 319 (1991); Falcon Mgmt., Inc., 86-1 C.P.D. ¶ 448 (1986). In so concluding, the GAO has noted that “[c]ontract options are exercised solely at the discretion of the government, and a contractor cannot compel an agency to exercise an option in its contract.” U.S. Defense Sys., Inc., 92-2 C.P.D. ¶ 179 at *2; see also Gov’t Sys. Advisors v. United States, 847 F.2d 811, 813 (Fed. Cir. 1998). The GAO has further observed that “those who bid on contracts containing option provisions assume the risk that the agency may not exercise that option,” and should not be heard to complain that the government’s failure to exercise an option left it unable to recover all its costs. U.S. Defense Sys., Inc., 92-2 C.P.D. ¶ 179 at *2.

Accordingly, the court concludes that plaintiff has not demonstrated a likelihood of success on the merits. Should this case proceed, much more will need to be shown to demonstrate that plaintiff is entitled to relief.  (Jones Automation, Inc. v. U. S., No. 10-174C, April 22, 2010) (pdf)

3. Expansion of the Court’s Tucker Act Jurisdiction Does Not Extend to the Government’s Failure to Exercise an Option on an Existing Contract

While the definition of “in connection with a procurement” under the ADRA has been clarified by the Court of Appeals for the Federal Circuit in a way which has broadened prior interpretations of this court, the government’s failure to exercise an option on an existing contract is not encompassed by that clarification. See Distributed Solutions, 539 F.3d at 1346. Nor is plaintiff aided by an earlier Federal Circuit description of Tucker Act jurisdiction after its amendment by the ADRA in RAMCOR Services Group, Inc. v. United States (RAMCOR), 185 F.3d 1286, 1289 (Fed. Cir. 1999), as “very sweeping in scope.” Cf. Pl.’s Resp. 2. The Federal Circuit stated in RAMCOR that “[a]s long as a statute has a connection to a procurement proposal, an alleged violation suffices to supply jurisdiction.” RAMCOR, 185 F.3d at 1289. RAMCOR, however, is distinguishable on its facts. RAMCOR had a contract with the Immigration and Naturalization Services (INS) to provide maintenance and support services at the Border Patrol Academy in Charleston, South Carolina. Id. at 1287. Upon the expiration of a five-year contract with RAMCOR, the INS determined that the contract had involved an “impropriety” and decided to award a new contract to a different contractor. Id. INS extended the contract with RAMCOR for two six-month periods after the initial expiration of its contract. Id. After the two extensions ran, INS began a new contract award process and excluded RAMCOR from that bidding process. Id. RAMCOR filed a pre-award bid protest with the General Accounting Office (GAO), which triggered an automatic stay. See id. (citing Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551-56 (1994)). The stay prevented INS from awarding a new contract pending a decision by the GAO on the protest. Id. Under a provision of CICA which allows for the override of a stay in “urgent and compelling” circumstances, the INS issued a “Written Determination and Finding” setting forth “urgent and compelling circumstances.” Id. (citing CICA, 31 U.S.C. §§ 3551-56). After issuing its override, INS awarded the contract to a contractor other than RAMCOR. Id. RAMCOR brought a preliminary injunction action in the Court of Federal Claims in order to prohibit the other contractor from performing under the contract. Id.

The Court of Federal Claims decided that, because plaintiff had not asked the court to review the merits of the award of the base support services contract, it did not have jurisdiction. Id. at 1288. RAMCOR appealed, asserting that amendments to 28 U.S.C. § 1491 under the ADRA “granted the Court of Federal Claims jurisdiction over RAMCOR’s action for a preliminary injunction.” Id. The Federal Circuit agreed with RAMCOR that the Court of Federal Claims had jurisdiction, citing the portion of §1491(b)(1) which affords jurisdiction to the Court of Federal Claims when “the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement” is at issue. Id. at 1288, 1291. The Federal Circuit held that RAMCOR’s objection to the lifting of the stay was within the jurisdiction of the court under the ADRA because the objection to the § 3553(c)(2) override was an objection to a statute which had a “connection to a procurement proposal, [and] an alleged violation suffices to supply jurisdiction.” Id. at 1289. The RAMCOR court determined that the case fell under the court’s ADRA jurisdiction because of the direct connection between the stay and the procurement. Id. Claims of bad faith in the exercise of options have been established to be within the province of the CDA. E.g., Krygoski Constr. Co. v. United States, 94 F.3d 1537, 1541 (Fed. Cir. 1996). RAMCOR does not govern this case.

Nor is plaintiff assisted by Ozdemir v. United States, No. 09-432 C, 2009 U.S. Claims LEXIS 353 (Fed. Cl. Nov. 9, 2009), which also offered an expansive definition of the court’s jurisdiction in bid protest matters when it held that a procurement was not necessary for the Court of Federal Claims to have bid protest jurisdiction. Id. at *1. The plaintiff, Mr. Ozdemir, submitted a response to a solicitation distributed by the Department of Energy (DOE) which invited potential offerors to submit technical ideas in concept papers. Id. The impetus for the solicitation was the DOE’s receipt of a financial assistance award from the Advanced Research Projects Agency – Energy (ARPA-E) which the DOE used to create a new internal organization to “foster research and development of transformational energy-related technologies.” Id. at *1-2. Mr. Ozdemir failed to request an application control number (a necessary precursor to filing a concept paper). Id. at *2-3. When Mr. Ozdemir attempted to file his paper without the control number, it was rejected by the DOE, thus creating the impetus for his bid protest. Id. at *3. The United States filed a motion to dismiss pursuant to RCFC 12(b)(1). Id. The government argued that the plaintiff’s protest was not within the jurisdiction of the court because the call for concept papers was not a procurement. Id. at *4.

In its opinion, the Ozdemir court discussed at length the jurisdictional grant of the Tucker Act as modified by the ADRA. Id. at *7-9; see 28 U.S.C. § 1491(b)(1). The court determined that ADRA “jurisdiction . . . do[es] not require a procurement connection.” Ozdemir, 2009 U.S. Claims LEXIS 353, at *8. The possible expansion of jurisdiction contemplated by Ozdemir provides no support for GTS’s assertion that the court’s jurisdiction under the ADRA extends to existing contracts and allegations of bad faith regarding the government’s failure to exercise an option. As defendant points out, the Federal Circuit has repeatedly pointed to the CDA as the vehicle by which aggrieved parties to an option contract must resolve their claims. Def.’s Mot. 15 n.9 (“Indeed all species of challenges to the government’s decision whether to exercise a discretionary option, including those unrelated to allegations of bad faith, have been resolved pursuant to the Court’s CDA jurisdiction.”) (citing Alliant Techsys., 178 F.3d at 1264-65; Cessna Aircraft, 126 F.3d at 1445-46; TMI Mgmt. Sys., 78 Fed. Cl. at 447).

III. Conclusion

The court lacks jurisdiction to hear plaintiff’s claim under the ADRA. Instead, plaintiff must pursue relief pursuant to the requirements set forth in the CDA. See Omega World Travel, Inc. v. United States, 82 Fed. Cl. 452, 461 (2008) (dismissing Omega’s bad faith allegation, which was based on the government’s alleged mishandling of task orders under a contract with Omega, because of plaintiff’s failure to exhaust its CDA-mandated administrative remedies); Ravens Group, Inc. v. United States, 78 Fed. Cl. 390, 398 (2007) (dismissing a bad faith allegation based on the government’s failure to exercise a discretionary option because “28 U.S.C. § 1491(b) provides no jurisdiction for claims of wrongful termination or breach” and “[c]laims for breach must be brought pursuant to the [CDA]”). The court lacks jurisdiction over GTS’s complaint because plaintiff did not comply with the provisions of the CDA, 41 U.S.C. §§ 601-613, prior to filing its Complaint.  (Government Technical Services LLC, v. U. S., No. 09-630L, December 29, 2009) (pdf)

Defendant is correct on both counts. FAR § 42.15–Contractor Performance Information outlines the relevance of past performance information for future source selection and describes the procedures that agencies must follow in preparing such evaluations. This evaluation process, however, occurs “at the time the work under the contract is completed.” FAR § 42.1502(a). Consequently, any issue with the evaluation process itself is not appropriate for a bid protest, which examines whether the agency examined properly all documentation before it in making the contract award determination. See Ocean Technical Servs., Inc., 2001 U.S. Comp. Gen. LEXIS 172, at *9 (Nov. 27, 2001) (“Our bid protest forum is not the place for a firm to first complain of not having received an assessment, nor do we serve as a forum for a firm to dispute the substance of an agency’s assessment of the firm’s work.”); Oregon Iron Works, Inc., 2000 U.S. Comp. Gen. LEXIS 108, at **16-17 (June 15, 2000) (stating that FAR Part 15 establishes source selection policies and procedures for negotiated procurements and declining to impute to Part 15 any requirements from FAR Part 42).  (Bannum, Inc., v. U. S. and Dismas Charities, Inc., No. 03-1751C, June 8, 2004)  (pdf)