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FAR 16.505 (a):  Indefinite-quantity contracts, task orders, beyond scope - Protests

Comptroller General - Key Excerpts

New 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:

  • Provided explosive safety training to civil engineer equipment personnel ensuring compliance with AFMAN [Air Force manual] 91‑201, “Explosives Safety Standards”

* * * * *

  • Provided controlled area training to Flight personnel; brought Flight back in compliance with AFI 31-101, “Integrated Defense”

AR, Tab 18, R3 September Monthly Progress Report, at 13.

The R3 October monthly progress report states that R3:

  • Conducted training and refresher courses for Flight cadre; improved instructor expertise

* * * * *

  • 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

* * * * *

  • Fully integrated new, medical training mannequin; provides combat stress to medical training scenarios

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)

Comptroller General - Listing of Decisions

For the Government For the Protester
Booz Allen Hamilton Engineering Services, LLC B-411065: May 1, 2015  (pdf) New Threat Management Group, LLC B-413729: Dec 21, 2016
Cornische Aviation & Maintenance, Ltd., B-408065, B-408065.2, Jun 7, 2013  (pdf) DynCorp International LLC, B-402349, March 15, 2010  (pdf)
Cygnus Corporation, B-406350, B-406350.2, Apr 11, 2012  (pdf) 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.)
Qwest Government Services, Inc., B-404845, March 25, 2011  (pdf) Anteon Corporation, B-293523; B-293523.2, March 29, 2004 (pdf)
California Industrial Facilities Resources, Inc., d/b/a CAMSS Shelters, B-403421; B-403421.2; B-403766; B-403788, November 5, 2010)  (pdf) Floro & Associates, B-285451.3; B-285451.4, October 25, 2000
Florida State College at Jacksonville, B-402656, June 24, 2010  (pdf) N&N Travel & Tours, Inc.; BCM Travel & Tours; Manassas Travel, Inc.;, B-285164.2; B-285164.3, August 31, 2000
Outdoor Venture Corporation, B-401628, October 2, 2009  (pdf) Ocuto Blacktop & Paving Company, Inc., B-284165, March 1, 2000
Morris Corporation, B-400336, October 15, 2008 (pdf) Makro Janitorial Services, Inc., B-282690, August 18, 1999  Bid Protest decisions listed by Federal Acquisition Regulation
Colliers International, B-400173, July 3, 2008 (pdf)  
Delex Systems, Inc., B-400321; B-400402, August 5, 2008 (pdf)  
Systems Research and Applications Corporation, B-400227, July 21, 2008 (pdf) New
Doug Boyd Enterprises, LLC, B-298237.2, August 6, 2007  (pdf)  
Cartographics, LLC, B-297121, November 15, 2005 (pdf)  
L-3 Communications Company, B-295166, December 10, 2004 (pdf)  
Professional Performance Development Group, Inc., B-294054.3, September 30, 2004  (pdf)  
Specialty Marine, Inc., B-293871; B-293871.2, June 17, 2004 (pdf)  
Computers Universal, Inc., B-293548, April 9, 2004  
Symetrics Industries, Inc., B-289606, April 8, 2002 (pdf)  
Hospital Klean, Inc., B-286791, December 8, 2000  
Corel Corporation, B-283862, November 18, 1999  
United Information Systems, Inc., B-282895; B-282896, June 22, 1999  
Electro-Voice, Inc., B-278319, B278319.2, January 15, 1998 (pdf)  

U. S. Court of Federal Claims - Key Excerpts

As noted above, FASA provides that under a multiple-award, ID/IQ contract, “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order” except for two exceptions. The first exception is “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. § 2304c(e)(1)(A). The second exception is “a protest of an order valued in excess of $10,000,000[,]” for which the statute provides the Comptroller General of the United States with exclusive jurisdiction. See 10 U.S.C. §§ 2304c(e)(1)(B), 2304c(e)(2).

If, however, protestor’s claim is challenging the failure under the “umbrella,” multiple award contract by the agency to be provided a fair opportunity to be considered for task order solicitations,13 under certain circumstances, that claim could be in the nature of a breach of contract claim, not a standard bid protest claim. The Tucker Act provides jurisdiction in this court over bid protests,14 generally when an interested party objects to a solicitation or contract award. See 28 U.S.C. § 1491(b)(1) (2012). By its terms, the FASA prohibition on bid protests does not apply to a breach of contract claim. As one commentator on government contracts stated:

Although contractors under multiple award IDIQ contracts cannot protest the award of a task or delivery order, it does not follow that they cannot pursue a claim under the CDA [Contract Disputes Act] when they think that the Government has breached its promise to give them a fair opportunity to be considered for an order. Protests and claims are very different things in terms of their objectives, the remedies available, and their effect on Government operations.

Vernon J. Edwards, Postscript: Breach of Loss of the Fair Opportunity to Compete, 20 No. 12 Nash & Cibinic Report ¶ 59, at 2, 7 (Dec. 2006); see also ABF Freight Sys., Inc. v. United States, 55 Fed. Cl. 392, 397 (2003) (dismissing three plaintiffs who had brought a bid protest, although all three had received contract awards, and stating: “The court does not see how a plaintiff asserting claims pertaining to a contract it has made with the government could be a ‘disappointed bidder’ for bid protest purposes. . . . Rather, such a plaintiff is a contractor asserting a claim ‘relating to a contract’ and is subject to the Contract Disputes Act jurisdiction of this court, as set forth in 41 U.S.C. § 609.”) (internal citations omitted).

In A & D Fire Protection v. United States, the court offered its opinion in dicta on a bid protest case as to whether it would have had jurisdiction under the CDA and the Tucker Act had plaintiff A & D alleged a breach of contract, based on the fair opportunity procedures incorporated into the plaintiff’s contract. See A & D Fire Protection v. United States, 72 Fed. Cl. at 128, 135. The A & D court did not have to directly address the issue because, as the court wrote, “[e]ven assuming CDA jurisdiction would lie for this suit, plaintiff has not alleged that a contract claim has been presented to the contracting officer,” which the court noted prohibits jurisdiction in the Court of Federal Claims. See id. at 135. The A & D court wrote

as a general matter, the court does not agree with the theory that actions, that are in essence bid protests of task order awards, can be re-characterized as contract disputes in order to create jurisdiction in this court or in an agency board of contract appeals. But see Ralph C. Nash & John Cibinic, Task Order Contracts: The Breach of Loss of the Fair Opportunity to Compete, 16 No. 10 Nash & Cibinic Report 49 (Oct. 2002) (“Taking a case to the agency board of contract appeals appears to be a viable way to contest the lack of a fair opportunity to compete for task orders.”). Such a stratagem attempts to evade the bar of task order bid protests clearly enunciated in Section 253j(d). But see Cmty. Consulting Int’l, ASBCA 53489, 02-2 BCA ¶ 31940, 2002 WL 1788535 (Aug. 2, 2002) (finding that a contract clause assuring a fair opportunity to compete for task orders gave the board jurisdiction, and finding no indication in FASA that “Congress explicitly carved out multiple award, task order contracts as an exception to [the board’s] Contract Disputes Act jurisdiction”). The court does not find that this type of bid protest action would fall within its CDA jurisdiction.

Id.

Although the court is reluctant to quote itself, in Digital Technologies, Inc. v. United States, 89 Fed. Cl. 711 (2009), that case is directly on point for this court’s jurisdiction over task order claims. In DTI, the plaintiff contended “that defendant breached its contract with plaintiff because Customs did not provide a fair opportunity to compete for a ten-month task order issued in November 2006 or allow plaintiff to be considered for additional task orders after November 2006[.]” Id. at 719. In DTI, plaintiff argued that, “by its terms, the restriction in FASA [did] not apply because DTI ha[d] asserted a breach of contract claim, not a bid protest.” Id. at 722. In DTI, plaintiff insisted it was not objecting to the award of any task order, requesting injunctive relief, seeking to compel a performance stay, or seeking to cancel a task order award. See id. Plaintiff alleged that it was denied a fair opportunity to compete and to be considered for the work contemplated in plaintiff’s ID/IQ master contract. See id. at 728. Specifically, the DTI plaintiff claimed in its complaint that it was:

denied a fair opportunity to compete under the contract it had been awarded, and to be considered for the work contemplated in DTI’s contract, in that the government engaged in an improper auction through disclosure of DTI’s unit pricing information; the government’s decision to compete task orders directly contradicted earlier assurances that it would not compete the work unless DTI, as the incumbent, had ‘severe performance difficulties’; the government inaccurately described the scope of work of task orders being competed, adversely impacting DTI, while the correct scope of work was known to ATI [DTI’s competitor who was awarded the task order at issue]; the short time frame for bidding on the November 2006 ten-month task order was designed by the government with the intent of awarding the task order contract to ATI, whose master contract would have prohibited ATI from receiving an award after December 1, 2006; and the November 2006 task order solicitation was designed to deny work to DTI.

Id. at 722. The DTI case was not a classic bid protest and the remedy sought was not a classic protest remedy. The DTI plaintiff alleged a breach of contract of its master ID/IQ contract and asserted jurisdiction under the CDA and section 1491(a)(1) of the Tucker Act. See id. at 726. Plaintiff also had met “the jurisdictional prerequisites of having first submitted a written certified claim to the agency contracting officer, . . . obtained a final decision from the contracting officer, who denied the claim and, in fact, informed DTI that it may appeal to the Civilian Board of Contract Appeals or file a claim in this court.” Id. at 729-30.

Protestor Orbis does not argue that its claims meet one of the exceptions in the FASA statute to the general jurisdictional bar on protests. Regarding the first exception, permitting “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. § 2304c(e)(1)(A), protestor did not allege, and conceded at the July 14, 2014 hearing, that, it was not arguing that the task order exceeded the scope, period, or maximum value of the umbrella contract. Regarding the second exception for “a protest of an order valued in excess of $10,000,000,” the specific task order at issue here, as alleged in the complaint, is valued at $6,133,033.00, and, thus, is not in excess of $10,000,000.00.

Addressing the jurisdictional issue in DTI, the undersigned concluded, without addressing whether a breach had occurred, that:

Because FASA, by its terms, only prohibits task order protests, this court has jurisdiction to hear Counts II (fair opportunity to compete) and III (fair opportunity to be considered for additional work) of the complaint regarding the alleged breach of the fair opportunity provisions of DTI’s contract.

Digital Techs., Inc. v. United States, 89 Fed. Cl. at 730. The DTI decision also stated:

DTI is not challenging the issuance or proposed issuance of a task order, but seeks monetary damages based on an alleged breach of specific contractual language on ordering provisions in its ID/IQ contract with the government. . . . Congress has not repealed the jurisdiction of this court to address master ID/IQ breach of contracts claims, and this court declines to act on the government’s invitation to partially repeal its CDA jurisdiction by implication. Therefore, because the present dispute has been properly asserted, because the jurisdictional prerequisites have been met, because the claim is tied to specific contractual provisions in DTI’s contract with the government, and concerns the administration of DTI’s master ID/IQ contract, the court finds that the dispute can be brought in this court as a breach of contract claim.

Id.

During the July 14, 2014 hearing in the above captioned case, the court reviewed the complaint with protestor’s counsel count by count and confirmed with counsel that each count alleged by Orbis was a challenge to the evaluation of the protestor’s submission in response to the Solicitation, or a related claim for declaratory and injunctive relief. During repeated discussion with the court at the hearing, protestor conceded that the claims filed by Orbis are not breach of contract claims of the umbrella contract, but are “straight bid protest.”

CONCLUSION

Based on the above analysis and discussion, the protest filed by Orbis challenging the Navy’s evaluation of the Orbis proposal responding to Solicitation N00024-14-R-3154 is barred by the language of the FASA statute at 10 U.S.C. § 2304c(e). The Protestor’s protest is DISMISSED, without prejudice. The Clerk of the Court shall enter JUDGMENT consistent with this opinion.  (Orbis Sibro, Inc., v. U. S., No. 14-589C, July 18, 2014)  (pdf)


B. The Challenged Request for Quotations Does Not Exceed the Scope of the Underlying Contracts

As noted above, the parties have cross-moved for judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”). In ruling on such motions, “the court asks whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005)). Because the court makes “factual findings . . . from the record evidence,” judgment on the administrative record “is properly understood as intending to provide for an expedited trial on the administrative record.” Bannum, Inc., 404 F.3d at 1356.

In bid protests, the Court of Federal Claims reviews the challenged agency action pursuant to the standards set forth in 5 U.S.C. § 706. 28 U.S.C. § 1491(b)(4). Although section 706 contains several standards, “the proper standard to be applied in bid protest cases is provided by 5 U.S.C. § 706(2)(A): a reviewing court shall set aside the agency action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Banknote Corp. of Am. v. United States, 365 F.3d 1345, 1350 (Fed. Cir. 2004). Under this standard, the court “may set aside a procurement action if ‘(1) the procurement official’s decision lacked a rational basis; or (2) the procurement procedure involved a violation of regulation or procedure.’” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (quoting Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001)). Here, plaintiff claims that the DSCP violated law and regulation by issuing an RFQ that was beyond the scope of the underlying contracts. To prevail on its claims, plaintiff must show that the violation was “clear and prejudicial.” Impresa Construzioni Geom. Domenico Garufi, 238 F.3d at 1333 (internal quotation marks omitted).

To determine whether an RFQ and the delivery order that would follow from the RFQ exceed the scope of an underlying contract, the court adopts the analysis articulated by the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201 (Fed. Cir. 1993), a decision that addresses whether a contract modification exceeds the scope of the underlying contract. The Federal Circuit explained that a “modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause.” Id. at 1205. Therefore, to determine the propriety of a contract modification, a court should examine “whether the contract as modified materially departs from the scope of the original procurement.” Id. Applying this standard in a delivery order protest, the court must determine whether the delivery order proposed or issued by the agency materially departs from the scope of the underlying contract, such that potential offerors in the original procurement would not have anticipated that the agency would issue delivery orders of that nature under the contract.

Accordingly, the court must first ascertain the scope of the Special Operational> Equipment Tailored Logistics Support Program contracts. Plaintiff contends that the only items that the DSCP could acquire under these contracts were those that would be used in support of special operations missions. Defendant and defendant-intervenor argue that the contract was broader and covered special operations equipment sought by all of the DSCP’s customers for all of the DSCP’s customers’ missions.

The language in the contracts is not as narrow as plaintiff asserts. In the solicitation, which was incorporated into the contracts, the DSCP made three broad representations. First, it indicated that it would use the contracts to acquire special operational equipment. See AR 45 (noting that the Special Operational Equipment Tailored Logistics Support Program contracts would be used to provide “a full line of logistic support of special operational equipment”), 78 (noting that “the scope of work” involved “the total logistics support” related to twenty-three categories of equipment). Second, the DSCP indicated that it would acquire special operational equipment for its customers, repeatedly identifying those customers as including the military and federal, state, and local governments. See id. at 44-45, 79, 81. And third, the DSCP indicated that it would acquire special operational equipment to support its customers’ missions. See id. at 78 (noting that “the scope of work” involved “the total logistics support required to supply customers and missions”), 119 (directing offerors to describe their experience “in support of military and federal missions relating to diving operations, lifesaving/search and rescue operations, hyperbaric support, flight deck safety, maritime interdiction, tactical operations and homeland defense”). Based on these representations, it appears that the DSCP intended to use the Special Operational Equipment Tailored Logistics Support Program to supply its customers and their missions with special operational equipment, without regard to whether those customers were special operations forces or whether the missions were special operations missions. In other words, the focus was on the nature of the equipment.

This interpretation is buttressed by the delivery order example provided by the DSCP in the solicitation’s Statement of Work: 2,500 vests for an aircraft carrier. The vests, which presumably would be worn by personnel on an aircraft carrier’s flight deck, fall under the Crew Support and Flight Deck Safety Items category set forth in the contracts. However, it would defy common sense to contend that the vests would be used solely in support of special operations missions. There can be no doubt that aircraft carriers are not used solely for special operations missions and that all personnel on an aircraft carrier are not special operations forces. Thus, some or all of the vests would be used during conventional military operations. Therefore, as this example demonstrates, the DSCP anticipated that the special operational equipment described in the contract could and would be used for purposes other than in support of special operations missions.

Plaintiff rests its narrower interpretation of the contracts on one sentence in the solicitation’s Statement of Work: “The primary concept of this contract is to support America’s special operations community by providing all equipment . . . necessary to perform their missions.” Id. at 78. The court is not persuaded that this one sentence limits the other language in the contracts describing the contracts’ scope of work. As an initial matter, the sentence describes the “primary concept” of the contracts, but in no way prevents the DSCP from using the contracts to support other customers and their missions. “Primary” does not mean “only.” Moreover, this is the only sentence in the contracts that suggests that the DSCP would supply special operational equipment only to special operations forces in support of their missions. To use this one sentence to limit the predominant and oft-repeated language in the contracts that describes a broader scope of work would render that broader language meaningless, contrary to the admonition that courts should interpret a contract to give meaning to all of its terms. See NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004) (“An interpretation that gives meaning to all parts of the contract is to be preferred over one that leaves a portion of the contract useless, inexplicable, void, or superfluous.”).

Based on the unambiguous language of the Special Operational Equipment Tailored Logistics Support Program contracts, the court concludes that the scope of those contracts is, concisely stated, the provision of special operational equipment in support of all of the DSCP’s customers and their missions. Because the contracts’ language is unambiguous, the court may not look to extrinsic evidence to interpret their provisions. TEG-Paradigm Envtl., Inc., 465 F.3d at 1338. Thus, plaintiff’s reliance on other documents in support of its interpretation of the contracts–such as the DSCP’s February 2009 scope memorandum, documents related to the proposed Tent and Shelter Tailored Logistics Support Program, and government publications concerning special operations–is misplaced.

Because the Special Operational Equipment Tailored Logistics Support Program contracts are broad in scope, it necessarily follows that the delivery orders issued under those contracts may be similarly broad in scope. See AT&T Commc’ns, Inc., 1 F.3d at 1205 (“[A] broad original competition may validate a broader range of later modifications without bid procedures.”). The challenged RFQ describes an acquisition by a military service–the Army–of items–ECUs–that fall within one or more of the categories set forth in the contracts–Survival Gear, Tactical Equipment Protective, and Survival Kits. In other words, the DSCP is ordering special operational equipment for one of its customers. Thus, the RFQ does not materially depart from the underlying contracts. Moreover, prospective offerors in the original competition were on notice, from both the public announcement of the follow-on acquisition and the solicitation itself, that the DSCP intended to use the contracts to procure special operational equipment for all of its customers and their missions. Accordingly, the RFQ is within the scope of the underlying contracts.  (California Industrial Facilities Resources, Inc. v U. S. and Atlantic Diving Supply, Inc., No. 12-148C, May 7, 2012)  (pdf)


However, in enacting the Federal Acquisition Streamlining Act of 1994 (“FASA”), Congress limited the court’s jurisdiction to entertain bid protests when the protest concerns the issuance of a task order.8 See 10 U.S.C. § 2304c(e) (2006 & Supp. IV). In such circumstances, the court is not authorized to entertain the protest unless it is based “on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued[.]”9 Id. § 2304c(e)(1)(A). See generally A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 133-35 (2006) (discussing the task order protest bar).

Here, Solute asserts that its protest is permissible because the task order issued to Sentek exceeds the scope of the underlying SeaPort-e contract. Specifically, it alleges that SPAWAR issued the task order to Sentek even though Sentek’s proposal did not comply with the contractual requirements relating to DCAA-approved accounting systems, subcontracting plans, and key personnel, thereby waiving those requirements. Therefore, it argues, because the task order contained terms that are not authorized in the underlying contract, the task order is beyond the scope of the contract. Solute further alleges that SPAWAR failed to evaluate the task order proposals in accordance with the requirements and criteria set forth in the task order solicitation despite being required to do so by the terms of the underlying contract. Therefore, it contends, because the task order was issued in contravention of the terms of the underlying contract, it exceeds the scope of the contract. The thrust of Solute’s allegations is that an agency’s flawed evaluation process in connection with the issuance of a task order can result in a task order that exceeds the scope of the underlying contract. Solute’s attempt to expand the definition of “scope” in this way is not persuasive.

First and foremost, plaintiff’s expansive definition of “scope” would render the task order protest bar meaningless. Solute suggests that any departure from the task order solicitation or underlying contract results in a task order that exceeds the scope of the contract. If this were true, then all protests related to task orders would fit within the “increases the scope” exception set forth in 10 U.S.C. § 2304c(e)(1)(A). Such a construction would clearly frustrate the congressional intent to limit contractors’ ability to protest the issuance of task orders. See also A & D Fire Prot., Inc., 72 Fed. Cl. at 134 (“This court cannot frustrate the intent of Congress, which was to exempt from protest the issuance of individual task orders to contractors who had already received awards, subject to protest, of their master IDIQ contracts.”). And, it is well settled that a statute should not be construed in such a way as to render it meaningless or inoperative. See Corley v. United States, 556 U.S. 303, 314 (2009); Roche v. Merit Sys. Prot. Bd., 596 F.3d 1375, 1380 (Fed. Cir. 2010).

Further, Solute’s expansive definition of “scope” does not comport with the language of its contract with the Navy or the task order solicitation at issue. Solute’s contract with the Navy uses “scope” in reference to the work the Navy intended to acquire from Solute. AR 999. And, in the task order solicitation’s PWS, “scope” is used in reference to the tasks SPAWAR intended to acquire in seven functional areas. Id. at 143; see also 10 U.S.C. § 2304a(b)(3) (requiring a task order solicitation to include a “statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract” (emphasis added)). In neither document is the term “scope” used in the broader sense Solute advocates.

Moreover, there is no support for Solute’s expansive definition of “scope” in the statutory text, legislative history, or case law. Beginning with the statutory text, Congress did not define the term “scope” in the FASA or any subsequent amendments to the FASA. Nor does the legislative history of the FASA provide any guidance. Cf. Labat-Anderson, Inc. v. United States, 50 Fed. Cl. 99, 105 (2001) (“In establishing jurisdiction, the Court does not rely on the FASA’s legislative history because it does not shed meaningful light on the scope of the task order protest bar.”).

The case law, however, does supply direction. The Court of Federal Claims, in
entertaining protests related to the issuance of task orders, has consistently understood “scope” to refer to the scope of work authorized in the contract. For example, in Phoenix Air Group, Inc. v. United States, the court analyzed whether a task order exceeded the scope of the underlying contract by comparing the flight services described in the task order with the flight services described in the contract, paying particular attention to the contract’s “Scope of Contract” section. 46 Fed. Cl. 90, 105-06 (2000). Similarly, in Omega World Travel, Inc. v. United States, the court held that the protestor could challenge the task orders at issue on the ground that they exceeded the scope of the underlying contract “to include services not contemplated by the” contract. 82 Fed. Cl. 452, 464 (2008). And, most strikingly, the court in A & D Fire Protection, Inc. noted that the irregularities in the task order proposal evaluation process demonstrated by the protestor did not fit with the “increases the scope” exception of the task order protest bar, and therefore held that it lacked jurisdiction over the protest. 72 Fed. Cl. at 133 n.7, 140-41. The parties have not cited any task order protest decisions from the Court of Federal Claims in which “scope” was treated as anything other than the scope of work, nor could the court, after an extensive search, locate any.

Defining “scope” as the scope of work finds further support in decisions addressing a similar issue: whether a contract modification improperly exceeds the scope of a contract. In AT&T Communications, Inc. v. Wiltel, Inc., the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) held that a “modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause” and explained that to determine whether the modification was improper, a court should examine “whether the contract as modified materially departs from the scope of the original procurement.” 1 F.3d 1201, 1205 (Fed. Cir. 1993). Then, applying these standards, the Federal Circuit analyzed whether certain telecommunications technology described in a contract modification was encompassed “within the work obligations” described in the underlying contract. Id. at 1206. In other words, it compared the work procured through the contract modification to the work procured through the contract. The Court of Federal Claims has applied the standard set forth in AT&T Communications, Inc. in the same manner: analyzing a challenge to the scope of a contract modification by comparing the products or services described in the contract with the products or services described in the contract as modified. See, e.g., Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 427-44 (2009) (concluding that a modification to a task order added systems and services to the task order that increased the scope of the task order); Northrop Grumman Corp. v. United States, 50 Fed. Cl. 443, 467-68 (2001) (holding that the modifications challenged by the protestor as outside the scope of the contract did not “represent the addition of new products or services to those originally competed under the solicitation”); Phoenix Air Grp., Inc., 46 Fed. Cl. at 105-06 (analyzing whether the contract’s “Scope of Contract” section described the flight services described in a contract modification). The GAO decisions cited by plaintiff offer the same analysis. See Poly-Pac. Techs., Inc., B- 296029, 2005 CPD ¶ 105 (Comp. Gen. June 1, 2005) (“An agency may not modify a contract by changing or relaxing requirements where the resulting work is fundamentally different from the work anticipated by the original solicitation.”); Avtron Mfg., Inc., 67 Comp. Gen. 404 (1988) (agreeing that the “proposed modification to the purchase description materially alters the terms of the original contract in that it significantly affects the design, construction, and performance of the aircraft generator test stand, thereby changing the scope of the contract so as to amount to a renegotiation of a new contract”).

In fact, because the issues are so similar, the GAO has concluded that “[t]he 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.” DynCorp Int’l LLC, B-402349, 2010 CPD ¶ 59 (Comp. Gen. Mar. 15, 2010). It has therefore held that a task order exceeds the scope of the underlying contract when “there is a material difference between the task order and that contract” such that potential offerors would not “reasonably have anticipated” that a task order of that nature could be issued. Id. The GAO looks for a material difference 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 GAO has consistently applied the material difference standard by comparing the work involved in the task order with the work involved in the underlying contract. In DynCorp Int’l LLC, for example, it examined whether proposed task orders to provide mentoring, training, facility maintenance, and logistics support in Afghanistan described services outside the scope of a contract for program and operations support for the Department of Defense Counter Narcoterrorism Technology Program Office. Id. In California Industrial Facilities Resources, Inc., the GAO analyzed whether the tents and related equipment that were the subject of a task order were the types of goods that could be acquired under a contract to provide special operational logistical equipment. B-403421 et al., 2010 CPD ¶ 269 (Comp. Gen. Nov. 5, 2010). And, in a protest concerning the issuance of a task order under a SeaPort-e contract, the GAO determined that the task order did not exceed the scope of the underlying contract because the training acquired with the task order fit within the contract’s definition of technical training. Fla. State Coll. at Jacksonville, B-402656, 2010 CPD ¶ 146 (Comp. Gen. June 4, 2010). Once again, the parties have not cited, and the court could not find, any GAO decisions in which a task order protest challenging flaws in the evaluation process was permitted to proceed under the “increases the scope” exception in 10 U.S.C. § 2304c(e)(1)(A).

In sum, the Federal Circuit, the Court of Federal Claims, and the GAO all analyze whether a contract modification or task order increases the scope of the underlying contract by comparing the scope of work described in the modification or task order with the scope of work described in the underlying contract. There is no reason to treat this case differently.

Accordingly, in the absence of any legal support for Solute’s expansive definition, the court finds that the term “scope,” as used in 10 U.S.C. § 2304c(e)(1)(A), refers to the scope of work contemplated in the contract and not to purported flaws in the evaluation process.

Solute has not alleged that the work described in the task order solicitation’s PWS is beyond the scope of the work described in the underlying SeaPort-e contract. Nor has Solute offered any evidence demonstrating that the underlying contract’s scope of work was expanded by the task order. Rather, its challenges reflect only its disagreement with the manner in which SPAWAR evaluated the task order proposals; in other words, that SPAWAR improperly downgraded its proposal on almost every evaluation factor while unfairly inflating Sentek’s proposal. Because the exception to the task order protest bar does not encompass challenges to proposal evaluations, the court lacks the authority to entertain Solute’s protest.  (Solute Consulting v. U. S. and Sentek Consulting, Inc., No 12-37C, March 13, 2012)  (pdf)


The issue raised by the case currently before the court is whether the court can adjudicate a claim alleging a failure of a statutory, regulatory and contractual obligation, to provide a fair opportunity to compete and be considered for task orders under a contract, in light of the Federal Acquisition Streamlining Act (FASA) provision, discussed below, prohibiting protests of task orders. DTI contends that defendant breached its contract with plaintiff because Customs did not provide a fair opportunity to compete for a ten-month task order issued in November 2006 or allow plaintiff to be considered for additional task orders after November 2006, although its contract with the government ran until April 30, 2007, with four, one-year options. In its motion to dismiss for lack of subject matter jurisdiction, defendant contends that DTI’s complaint is essentially a “thinly disguised protest” of a task order, dressed as a breach of contract claim, as an “artifice” to “thwart the intent of Congress” and evade FASA’s jurisdictional restriction on challenges to task order procurements and awards.

The Competition in Contracting Act (CICA) requires that procurements be conducted “in a manner designed to achieve full and open competition for the procurement[.]” 41 U.S.C. § 253a(a)(1)(A). In 1994, Congress passed FASA to simplify and streamline the federal acquisition process in order to yield a more efficient system. See S. Rep. 103-258, at 1, reprinted in 1994 U.S.C.C.A.N. 2561. “The Committee intends that all federal agencies should move to the use of multiple task order contracts, in lieu of single task order contracts, wherever it is practical to do so.” S. Rep. 103-258, at 15, 1994 U.S.C.C.A.N. 2561, 2576. FASA also “provides that when an agency makes an order pursuant to a task or delivery order contract, the agency is not required to publish a notice of solicitation nor is it required to hold a ‘competition...that is separate from that used for entering into the contract.’” Corel Corp. v. United States, 165 F. Supp. 2d 12, 20 (D.D.C. 2001) (quoting 41 U.S.C.A. at § 253j(a)(2)) (omission in original); see also Global Computer Enterprises, Inc. v. United States, 88 Fed. Cl. 350, 404-05 (discussing the legislative history of FASA), opinion modified on recons. 88 Fed. Cl. 466 (2009) (addressing other matters). The report of the Senate Committee on Governmental Affairs explains:

The new provisions...are intended to given [sic] agencies broad discretion in establishing procedures for the evaluation and award of individual task orders under multiple award contracts. They do not establish any specific time frames or procedural requirements for the issuance of task orders, other than that there be a specific statement of work and that all contractors under multiple award contracts be afforded a reasonable opportunity to be considered in the award of each task order (with narrow exceptions). Accordingly, contracting officials will have wide latitude and will not be constrained by CICA requirements in defining the nature of the procedures that will be used in selecting the contractor to perform a particular task order. When contracting officials award task orders they will have broad discretion as to the circumstances and ways for considering factors such as past performance, quality of deliverables, cost control, as well as price or cost.

S. Rep. 103-258, at 16, reprinted in 1994 U.S.C.C.A.N. 2561, 2576. “In other words, once the task or delivery order contract itself has been obtained through full and open competition, orders made pursuant to that contract are immune from CICA’s full and open competition requirements.” Corel Corp. v. United States, 165 F. Supp. 2d at 20.

As noted above, FASA states that under a multiple-award, ID/IQ contract, “[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.” 41 U.S.C. § 253j(d);10 see also Omega World Travel, Inc. v. United States, 82 Fed. Cl. 452, 464 (Fed. Cl. 2008) (“Challenges to a task order awarded under a master IDIQ contract are limited by FASA to allegations that the task order increases the ‘scope, period, or maximum value of the contract under which the order is issued.’ 41 U.S.C. § 253j(d). Accordingly, Omega’s challenge of the task orders at issue in this case is limited to its allegations that the task orders exceed the scope of the ETS [E-Gov Travel Services] master IDIQ contract to include services not contemplated by the master IDIQ contract, and the court will consider the merits of this claim. All other allegations made by Omega challenging the award of the task orders are barred by FASA and may not be considered by this court.”) (other citations omitted).

As a counterbalance to the streamlined procedures, FASA also established that each contract awardee eligible for the task orders issued, shall be provided a fair opportunity to be considered for task orders issued under a multiple-award, ID/IQ contract, with a few exceptions not applicable here. 41 U.S.C. § 253j(b) (“When multiple 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 [unless one of the exceptions applies].”); see also 48 C.F.R. § 16.505(b)(1)(i) (2006). Furthermore, FASA requires agencies to designate a senior agency official independent from the contracting officer to serve as “a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on such contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (b) of this section.” 41 U.S.C. § 253j(e). In implementing FASA, the FAR gives the contracting officer broad discretion to establish task order placement procedures, yet it also lists certain procedures that must be followed to provide a fair opportunity to each awardee, such as clearly stating the agency’s requirements, and including the procedures in the solicitation and contract. See 48 C.F.R. §§ 16.505(a)(2), (b)(1)(ii)(D).

(sections deleted)

Unlike A & D, which was purely a task order protest, the Armed Services Board of Contract Appeals case, Community Consulting International (CCI), involved the breach of the master ID/IQ contract, like the present case. CCI alleged breach of the contractual duty to provide a fair opportunity to compete for task orders, in violation of FASA, FAR implementing regulations, and the fair opportunity clause contained in CCI’s ID/IQ contract. Cmty. Consulting Int’l, ASBCA No. 53489, 02-2 BCA ¶ 31,940, at 157,784-85 (CCH). As in the present case, CCI claimed jurisdiction under the CDA, and sought monetary relief. Id. Also as in the present case, the government in CCI contended that the complaint was really a bid protest, and that the ASBCA, therefore, was without jurisdiction due to the FASA prohibition on task order protests. Id. at 157,786. CCI responded that it was not objecting to the placement of a task order with another contractor, which would have been a protest, but was seeking to enforce the terms of its master ID/IQ contract, and seeking damages suffered as a result of the government’s failure to follow that contract’s ordering provisions. Id.

Rejecting the government’s argument that the dispute was in essence a bid protest, the Board held that it had jurisdiction to hear CCI’s claim. Id. at 157,786-87. CCI alleged that it was denied a fair opportunity to compete for task orders. The Board concluded that CCI’s claim was “rooted squarely in [a] contractual promise,” and fell within the Board’s Contract Disputes Act breach jurisdiction. Id. at 157,786.

The CCI Board opinion also

reject[ed] the argument that resort to the task and delivery order ombudsman is appellant’s [CCI’s] exclusive remedy. Neither 41 U.S.C. § 235j(e) [sic] not [sic] FAR 16.505 confers remedial powers on the ombudsman. In addition, respondent [the government] does not cite to any provision of FASA, and we know of none, in which Congress explicitly carved out multiple award, task order contracts as an exception to our Contract Disputes Act jurisdiction. While respondent argues that 41 U.S.C. § 253j(e) “creates a forum [the ombudsman] for reviewing IQC [indefinite quantity contract] contractors’ complaints and for ensuring that they are afforded a fair opportunity to be considered for task and delivery orders,” we decline to regard that provision as an implicit exception to our jurisdiction. “[R]epeals by implication are strongly disfavored…so that a later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two. United States v. Fausto, 484 U.S. 439, 352-53 (1988); see also Dalton v. Sherwood Van Lines, 50 F.3d 1014, 1018 (Fed. Cir. 1995) (holding that Contract Disputes Act did not impliedly repeal dispute resolution procedures applicable to common carriers in earlier statute). Moreover, the available legislative history does not appear to support the conclusion that Congress intended to establish an exception to our jurisdiction. 41 U.S.C. § 235j(e) [sic] was part of section 1054 of Pub. L. No. 103-355. The conference report regarding section 1054 states that

the conference agreement would provide general authorization for the use of task and delivery order contracts to acquire goods and services other than advisory and assistance services. The conferees note that this provision is intended as a codification of existing authority to use such contractual vehicles. All otherwise applicable provisions of law would remain applicable to such acquisitions, except to the extent specifically provided in this section….

H. R. Conf. Rep. No. 103-712, reprinted in 1994 U.S.C.C.A.N. 2607, 2611.

Id. at 157,787 (other citations omitted; brackets added); see also L-3 Commc’ns Corp., ASBCA No. 54920, 06-2 BCA ¶ 33,374, at 165,451-52 (CCH) (citing the ASBCA’s decision in Community Consulting International, and denying the government’s motion to dismiss the alleged breach of the Awarding Orders clause of L-3 Communications Corporation’s indefinite quantity contract), subsequent determination, L-3 Commc’ns Corp., Link Simulation & Training Div., ASBCA No. 54920, 08-1 BCA ¶ 33,857, at 167,603-05 (CCH) (the Board found a breach of the fair opportunity provisions of the contract on some but not on all grounds argued by L-3, concluded that L-3 was entitled to recover costs, but denied L-3 its lost profits because L-3 had not proven that the delivery order would have gone to L-3 rather than to The Boeing Company without the government’s breach; and also because L-3 had not met the proximate causation test, citing California Federal Bank v. United States, 395 F.3d 1263, 1267 (Fed. Cir. 2005) (“the plaintiff must establish that there would have been a profit but for the breach”)), appeal dismissed, L-3 Commc’ns Corp. v. Donley, No. 2008-1579, 2009 WL 464576, at *2 (Fed. Cir. Feb. 6, 2009) (dismissed because L-3 failed to file a timely appeal).

In the present complaint, as in CCI, DTI presented claims that it was denied a fair opportunity to compete and to be considered for the work contemplated in DTI’s ID/IQ master contract when: the government engaged in an improper auction through disclosure of DTI’s unit pricing information; the government made a decision to compete the task order, directly contradicting earlier assurances that it would not compete the work unless DTI, as the incumbent, had “severe performance difficulties”; the government included inaccurate descriptions of the scope of work of task orders being competed, although the actual scope of work was known to ATI; the government established the short time frame for bidding on the November 2006, ten-month task order, which was designed by the government with the intent of awarding the task order contract to ATI, whose master contract would have prohibited ATI from receiving an award after December 1, 2006; and that the November 2006 task order solicitation was designed to deny work to DTI. DTI contends that these government actions were done “maliciously, oppressively, and with the intent to injure,” reflecting a failure to act in good faith and to provide a fair opportunity to compete for task orders, all of which resulted in a bad faith, constructive termination of DTI’s contract.

Agreeing with the Board results in Community Consulting International and L-3 Communications Corporation, one commentator on government contracts has stated:

A claim is not a protest. The objectives of claims and protests are entirely different. A protest is filed by a noncontractor seeking to prevent contract award to a competitor; a claim is filed by a contractor seeking money, time, and/or a contract interpretation. (In Community Consulting, the contractor sought monetary damages and contract interpretation; in L-3 Communications, the contractor sought only monetary damages.) Protests are highly disruptive to Government operations. In response to a protest to the Government Accountability Office, the Government may have to suspend an award or performance pending resolution, 31 USCA § 355(c) and (d)(3); FAR 33.104(b) and (c). The Court of Federal Claims can issue a temporary restraining order, preliminary injunction, and permanent injunction against performance or award and can grant declaratory relief by ordering the agency not to exercise options or even to terminate any contract awarded. Congress banned protests against the award of delivery orders and task order under multiple award IDIQ contracts to streamline the contract formation process by preventing those kinds of disruptions of agency operations. 

Claims do not disrupt ongoing operations because under the CDA, a board or court cannot suspend award or performance, issue a temporary restraining order, or provide injunctive relief. All that a claim involves is an assertion that the agency breached its contract and the contractor should be given damages for the breach. Claims have virtually no impact on contract performance because the CDA gives contracting Officers at least 60 days to make a final decision after receipt of the claim, 41 USCA § 605(c)(2), and litigation occurs months if not years later.

The statutory language of the [FASA] protest ban says nothing about claims. See 10 USCA § 2304c(d):

Protest.-- 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.

That language clearly bars only protests. We agree with the ASBCA that claims are not protests and are not barred by the prohibition against protests.

. . .

Although contractors under multiple award IDIQ contracts cannot protest the award of a task or delivery order, it does not follow that they cannot pursue a claim under the CDA when they think that the Government has breached its promise to give them a fair opportunity to be considered for an order. Protests and claims are very different things in terms of their objectives, the remedies available, and their effect on Government operations.

Vernon J. Edwards, Postscript: Breach of Loss of the Fair Opportunity to Compete, 20 No. 12 Nash & Cibinic Report ¶ 59, at 2, 7 (Dec. 2006); see also ABF Freight Sys., Inc. v. United States, 55 Fed. Cl. 392, 397 (2003) (dismissing three plaintiffs who had brought a bid protest, although all three had received contract awards: “The court does not see how a plaintiff asserting claims pertaining to a contract it has made with the government could be a ‘disappointed bidder’ for bid protest purposes.... Rather, such a plaintiff is a contractor asserting a claim ‘relating to a contract’ and is subject to the Contract Disputes Act jurisdiction of this court, as set forth in 41 U.S.C. § 609.” (citing Ingersoll-Rand Co. v. United States, 780 F.2d 74, 77-80 (D.C. Cir. 1985); Davis/HRGM Joint Venture v. United States, 50 Fed. Cl. 539, 545 (2001); and Cmty. Consulting Int’l, 02-2 BCA ¶ 31,940).

In Ingersoll-Rand, which was decided in 1985, prior to the enactment of FASA in 1994, the United States Court of Appeals for the District of Columbia Circuit assessed the essential nature of the complaint in order to determine whether it was bought in the appropriate forum. Ingersoll-Rand Co. v. United States, 780 F.2d at 76-80. Such an analysis is instructive for our purposes. The Ingersoll-Rand Company sought a temporary restraining order and preliminary and permanent injunctions when the agency terminated its contract and resolicited. Id. at 75. The court posed the question at issue: “The essential question in this case is whether appellant’s claim is ‘founded upon an[ ] express or implied contract with the United States.’ 28 U.S.C. § 1346(a)(2) (1982). If it is, then the CDA limits adjudication of this dispute to the Claims Court.” Id. at 76 (brackets in original). The District of Columbia Circuit Court concluded that, “it is possible to conceive of this dispute as entirely contained within the terms of the contract,” and that the termination, therefore, should be challenged based on contract principles under the CDA in the Claims Court. Id. at 78; see also Davis/HRGM Joint Venture v. United States, 50 Fed. Cl. at 544-45 (citing Ingersoll-Rand Co. v. United States, 780 F.2d at 79-80, and concluding that a dispute over a termination for the convenience of the government clause incorporated into the contract was in essence a breach of contract claim, not a bid protest, “because the claims involve a dispute arising out of the contract between the parties, and therefore must be brought under the CDA”).

This court finds that DTI’s complaint is in the nature of a breach of contract claim. DTI asserted jurisdiction under the CDA and section 1491(a)(1) of the Tucker Act. In this opinion, the court does not address whether the government actually breached the contract in this opinion, only that these allegations in DTI’s complaint fall with the court’s CDA breach jurisdiction. DTI has met the jurisdictional prerequisites of having first submitted a written, certified claim to the agency contracting officer, and has obtained a final decision from the contracting officer, who denied the claim and, in fact, informed DTI that it may appeal to the Civilian Board of Contract Appeals or file a claim in this court. FAR 33.210 provides the contracting officer with authority “to decide or resolve all claims arising under or relating to a contract subject to the [CDA].” 48 C.F.R. § 33.210 (Oct. 1, 2008). DTI is not challenging the issuance or proposed issuance of a task order, but seeks monetary damages based on an alleged breach of specific contractual language on ordering provisions in its ID/IQ contract with the government. In FASA, 41 U.S.C. § 253j(d), Congress addressed only the protest of task orders, and did not address the breach of master ID/IQ contracts. Congress has not repealed the jurisdiction of this court to address master ID/IQ breach of contracts claims, and this court declines to act on the government’s invitation to partially repeal its CDA jurisdiction by implication. Therefore, because the present dispute has been properly asserted, because the jurisdictional prerequisites have been met, because the claim is tied to specific contractual provisions in DTI’s contract with the government, and concerns the administration of DTI’s master ID/IQ contract, the court finds that the dispute can be brought in this court as a breach of contract claim. Because FASA, by its terms, only prohibits task order protests, this court has jurisdiction to hear Counts II (fair opportunity to compete) and III (fair opportunity to be considered for additional work) of the complaint regarding the alleged breach of the fair opportunity provisions of DTI’s contract.  (Digital Technologies, Inc., v. U. S., No. 08-604C, December 4, 2009) (pdf)


Omega asserts that the master task order awarded to CWGT in 2007 exceeded the scope of the master IDIQ contract under which it was awarded because, while the master IDIQ contract required the handling of sensitive but unclassified materials, the master task order, and the sub task orders issued in 2008, will require CWGT to handle more restricted information and materials. Specifically, Omega appears to allege that the TMC services provided by Omega, including the Witness Protection Program services, are outside the scope of the master IDIQ contract. In support of its contention, Omega points to the language of the E-Gov Travel Service Ordering Guide, which provides that agencies that have exceptional business, location, or security requirements may wish to use non-ETS TMCs to acquire agent-assisted services. DA 014-015. Omega contends that the Ordering Guide allows for the possibility of an agency requiring services beyond the scope of the ETS master IDIQ contract, which Omega argues is the case with the security services required by DOJ. Omega also relies on the master task order estimate that DOJ would require zero high risk positions, DOJ AR 48, asserting that the actual security needs of DOJ will exceed the estimates set forth by the master task order. Accordingly, Omega contends that CWGT will likely be asked to perform security-related services that exceed the scope of the master IDIQ contract.

In response, the government and CWGT argue that, because CWGT's ETS master IDIQ contract required that CWGT have the capability to either accommodate an existing TMC provider or to provide traditional TMC services, the TMC services that CWGT is required to provide under the master task order and the sub task orders, including any security services, were contemplated by the master IDIQ contract, and the award of task orders for those services under that contract was appropriate. Furthermore, the government and CWGT assert that CWGT's master IDIQ contract provides for an "end-to-end travel management service," including traditional TMC services, and therefore that the master task order is clearly within the scope of the master IDIQ contract.

CWGT's master IDIQ contract defines the scope of the contract as follows: This contract is for an end-to-end travel management service that is owned, hosted, and operated by [CWGT] and is provided to the Federal Government via a web portal environment. The [ETS] is intended to permit agencies to perform all aspects of travel management online with processes and procedures consistent with applicable travel regulations and policies. Travel management functions include, but may not be limited to, the following: (1) Travel planning and cost estimating; (2) Travel authorization; (3) Booking of reservations; (4) Filing, processing, and approval of official travel claims; (5) Reporting; data exchange, etc.; and (6) Fulfillment services.

GSA AR 17 (emphasis added). The RFQ issued by DOJ in 2006 for the task orders to be awarded under the master IDIQ contract did not specifically identify any additional services to be performed that were not identified in the master IDIQ contract. See DOJ AR 678. The Executive Summary of the master task order awarded to CWGT in 2007 provides:

The DOJ requires an ETS that shall improve the Department's travel management processes and meet the Department's functional, technical, and security requirements. The ETS shall, but is not limited to: Provide a web-based, self-service, end-to-end travel solution; Meet the Department's travel services needs which include travel planning, cost estimation, travel authorization creation, booking of travel reservations, travel fulfillment, filing/processing/approval of official travel claims and local travel; Supply travel reporting and data exchange for the Department; Eliminate the need for hard copy travel documentation currently used at the DOJ.

DOJ AR 22. The government and CWGT contend that neither the RFQ nor the master task order require CWGT to provide any services that were not within the scope of CWGT's master IDIQ contract, and accordingly that the master task order was appropriately awarded to CWGT in 2007 and the sub task orders were appropriately awarded under the master task order in 2008.

The court agrees with the government and CWGT that the services contemplated by the master task order and the sub task orders awarded to CWGT were not outside the scope of the master IDIQ contract under which they were awarded. Omega's primary argument is that, once the TMC services are transitioned to CWGT, CWGT will be required to perform additional services, currently performed by Omega, that were not contemplated by the master IDIQ contract or any of the task orders issued to CWGT. However, Omega has not identified any duties required to be performed by the master task order or the sub task orders that fall outside the scope of the master IDIQ contract. Whether Omega currently performs services outside the scope of the master IDIQ contract is not relevant; the court must only examine whether the task orders awarded to CWGT require CWGT to perform services outside the scope of the master IDIQ contract. It is clear from the above-quoted portions of the master IDIQ contract and the master task order that CWGT is not being asked to perform any services not contemplated by the master IDIQ contract. Moreover, to the extent that DOJ might require additional services in the future for its Witness Protection Program that are not now included in the sub task orders, the master IDIQ contract and master task order allow DOJ to obtain such services through the CLINs for "Supplemental Security Services" and "Non-Self Service" travel assistance. DOJ AR 13-15. Accordingly, the task orders do not exceed the scope of the master IDIQ contract, and Omega's challenge to the award of the task orders must be rejected. The government and CWGT are entitled to judgment upon the administrative record.  (Omega World Travel, Inc., v. U. S. and CW Government Travel, Inc., No. 08-118C, July 3, 2008) (pdf)


In light of the broad language of Subsection 1491(b) and Congress’s expressed intent that the Subsection encompass the entire procurement process, the court holds that it has subject matter jurisdiction to consider OTI’s claim. 28 U.S.C. § 1491(b); see 41 U.S.C. § 403(2); RAMCOR, 185 F.3d at 1289. GAO’s rationale in Electro-Voice is a persuasive guidepost indicating that a set of identically phrased contracts can be used by a procuring agency as a means of winnowing candidates for a procurement to determine which candidate or candidates will receive or share the ultimate award. That the competition consists of a framework built around stages of issued contracts rather than upon offers, does not dictate a different result. The concluding portion of Paragraph (1) of Subsection 1491(b) is sufficiently broad that the form in which the competition takes place does not matter. The government’s motion to dismiss for lack of subject matter jurisdiction is thus denied. The court’s conclusion that it has jurisdiction to consider OTI’s claim does not relieve OTI of its burden of showing that the actions of GPO were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see 28 U.S.C. § 1491(b)(4) (incorporating the standard of review set out in 5 U.S.C. § 706); see PGBA, 389 F.3d at 1224-27. (OTI America, Inc., v. U. S., 05-904C, September 30, 2005) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Orbis Sibro, Inc., v. U. S., No. 14-589C, July 18, 2014  (pdf) Digital Technologies, Inc., v. U. S., No. 08-604C, December 4, 2009 (pdf)
California Industrial Facilities Resources, Inc. v U. S. and Atlantic Diving Supply, Inc., No. 12-148C, May 7, 2012  (pdf) OTI America, Inc., v. U. S., 05-904C, September 30, 2005 (pdf)
Solute Consulting v. U. S. and Sentek Consulting, Inc., No 12-37C, March 13, 2012  (pdf)  
Omega World Travel, Inc., v. U. S. and CW Government Travel, Inc., No. 08-118C, July 3, 2008 (pdf)  
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