BNUMBER:  B-278408.3           
DATE:  September 15, 1998
TITLE: Teledyne-Commodore, LLC, B-278408.3, September 15, 1998
**********************************************************************

Matter of:Teledyne-Commodore, LLC

File:B-278408.3          
        
Date:September 15, 1998

Harvey G. Sherzer, Esq., Scott Arnold, Esq., Harriet 
Mountcastle-Walsh, Esq., and Douglas S. Manya, Esq., Howrey & Simon, 
for the protester. 
Jeffrey I. Kessler, Esq., and Lisa R. Simon, Esq., U.S. Army Materiel 
Command, for the agency. 
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest alleging that contracting agency improperly issued task 
orders under indefinite-quantity, indefinite-delivery, multiple award 
contracts is dismissed pursuant to 10 U.S.C.  sec.  2304c(d) (1994), which 
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," where 
the enumerated exceptions do not apply.

2.  Restriction on protests of orders placed under a task order 
contract contained in 10 U.S.C.  sec.  2304c(d) applies where the contract 
contemplates the issuance of a limited number of task orders for only 
three contract line items reflecting three distinct phases of the work 
contemplated under the contract, and the protested task orders do not 
implement a downselection, but merely represent the final phase of the 
work contemplated under the contract.

DECISION

Teledyne-Commodore, LLC protests the issuance of task orders to 
General Atomics, Burns and Roe Enterprises, Inc., and Parsons 
Infrastructure and Tech Group/Allied Signal by the Department of the 
Army, to proceed with the technology demonstration phase of the 
Assembled Chemical Weapon Assessment (ACWA) Program under 
indefinite-quantity, indefinite-delivery, multiple award contracts 
awarded under request for proposals (RFP) No. DAAM01-97-R-0031.[1]  
The Army issued the RFP for identification of technologies other than 
incineration for demilitarization of assembled chemical weapons.

We dismiss the protest.

On July 28, 1997, the agency issued the RFP here, for the selection 
and demonstration of approaches, other than the "baseline" 
incineration approach, for demilitarization and disposal of stockpiled 
assembled chemical weapons.[2]  RFP  sec.  C.1.  The RFP contemplated the 
award of multiple task order contracts. RFP  sec.  A.  The solicitation 
advised offerors that the ACWA Program here was separate from the 
chemical stockpile disposal program, in constituting an effort to find 
whether there existed "mature technology" alternatives to 
incineration.  RFP  sec.  C.1.2.  The culmination of the ACWA Program will 
be a recommendation sent to Congress detailing the results of the 
technologies evaluated and demonstrated.  RFP  sec.  C.1.2.2.

The RFP divided the work into the following three distinct contract 
line item numbers (CLIN), each corresponding to a particular phase of 
the contract effort:  CLIN 0001, data gap resolution; CLIN 0002, 
demonstration work plan; and CLIN 0003, technology demonstration.  RFP  sec.  
A (executive summary), B, C.4, and M.2.  The RFP explained that each 
of the three requirements would be accomplished under separate task 
orders.  RFP  sec.  B.1, C.4.

The RFP stated that all offerors which met the threshold "go/no go" 
criteria listed in section M.6.1.2 of the RFP and whose proposals were 
responsive to the solicitation requirements would be awarded a 
contract and issued a task order for CLIN 0001 in the amount of 
$50,000 to prepare a data gap resolution work plan.  RFP  sec.  C.1.2.4, 
C.1.2.5, M.4, and M.5.1.  The RFP further explained that the agency 
would issue task orders for CLIN 0002 based on the evaluation of 
proposals against criteria described in section M.6.2 of the RFP.  
Based on the relative technical rankings of proposals a program 
evaluation team (PET) would recommend, to the extent possible, a 
minimum of two technologies for demonstration testing.  RFP  sec.  C.1.2.6.  
Those contractors recommended for demonstration testing were to 
receive a second task order under CLIN 0002 in the amount of $50,000 
to prepare a demonstration work plan.  Id.  The PET would then 
evaluate the demonstration work plans in accordance with criteria 
announced in the solicitation, and recommend contractors who would be 
issued a third task order under CLIN 0003, on a cost-plus-fixed-fee 
basis, to perform demonstration testing.[3]  RFP  sec.  C.1.2.7.  
Contractors that were not issued a task order under CLIN 0002 would 
not be considered for a task order under CLIN 0003.  RFP  sec.  M.5.2.

The agency awarded contracts and issued CLIN 0001 task orders to seven 
firms.  The agency subsequently issued task orders under CLIN 0002 to 
six contractors (including Teledyne-Commodore).  By letter dated July 
29, 1998, the agency informed the protester that it had issued task 
orders under CLIN 0003 to General Atomics, Burns & Roe, and 
Parsons/Allied Signal.  This protest followed a debriefing by the 
agency.  Teledyne-Commodore challenges the agency's decision not to 
issue the firm a task order under CLIN 0003 on various grounds, 
including that the agency improperly made cost rather than technical 
merit the predominant source selection factor; the agency failed to 
perform a cost realism analysis; the agency conducted improper 
discussions; and the agency's evaluation of its proposal was flawed.

The agency argues that our consideration of the protest is precluded 
by 10 U.S.C.  sec.  2304c(d), which 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 agency points out that none of 
the protest issues concern allegations that the task orders issued 
under CLIN 0003 are beyond the scope, period or maximum value of the 
contract.

The protester argues that our Office has jurisdiction to consider this 
protest consistent with our decision in Electro-Voice, Inc., B-278319, 
B-278319.2, Jan. 15, 1998, 98-1 CPD  para.  23.  In that case, we concluded 
that the statutory restriction on protests of orders placed under task 
or delivery order contracts does not apply to protests of 
"downselections" implemented by the placement of a task or delivery 
order under a multiple award task or delivery order contract where the 
task order results in the elimination of one of the contractors from 
consideration for future orders under the remaining terms of the 
contract.  Teledyne-Commodore argues that issuance of the task orders 
protested here constitutes a downselection.  The protester takes the 
position that the Army used the basic contracts and the task orders 
issued under CLINs 0001 and 0002 to conduct a "downselection" for the 
technology demonstration phase (CLIN 0003).  According to 
Teledyne-Commodore, once the downselection was made, "there will be no 
further opportunity for Teledyne-Commodore to do any work under the 
contract, just as in Electro-Voice, Inc."  Protester's Sept. 8, 1998 
opposition to the Army's supplement to its summary dismissal request, 
at 8.  The protester further maintains that its failure to receive a 
task order under CLIN 0003 means that the firm "will be eliminated 
from further participation in the ACWA Program."  Protester's Aug. 14, 
1998 response to agency's motion to dismiss, at 2.  The protester thus 
concludes that, based on our decision in Electro-Voice, Inc., our 
Office has jurisdiction to review the issuance of the protested task 
order under CLIN 0003.

The Army responds that this was not a downselection, but rather the 
issuance of task orders representing the final work effort 
contemplated by the contracts.  The agency thus argues that unlike the 
protester in Electro-Voice, Inc., Teledyne-Commodore has not been 
eliminated from competing on future work under its contract here, 
because there will be none.

In further support of its position, the agency points to additional 
factors regarding the overall posture of acquisitions relating to the 
development of alternatives to current baseline technologies for the 
destruction of assembled chemical weapons.  The agency states that the 
work effort under the contracts awarded under the instant solicitation 
is just part of the overall process.  For example, the agency states 
that, contrary to the protester's argument, the failure of 
Teledyne-Commodore to receive a CLIN 0003 task order does not preclude 
the firm from participating in subsequent steps in the process.  In 
this regard, the Army explains that while not all studies of the 
available technologies have been completed,[4] it is the agency's 
intent to issue competitive solicitations for its future needs.  The 
agency thus maintains that Teledyne-Commodore has not "lost out" on 
future competitions due to its failure to receive a task order under 
CLIN 0003, because the agency anticipates filling its future needs 
through competitive acquisitions under which the protester will have 
an opportunity to participate.[5]

In our view, the Electro-Voice, Inc. decision is not applicable here 
and the restriction on protests of orders placed under a task order 
contract contained in 10 U.S.C.  sec.  2304c(d) applies.  In Electro-Voice, 
the protester and another contractor were issued an order for an 
initial delivery of product demonstration models consistent with the 
agency's intent of conducting a downselect between the two 
competitors.  Once the downselection was made, only the selected 
contractor would receive task orders for the production requirements; 
there would be no ongoing competition for orders among the multiple 
award contractors as envisioned by the law.  Id. at 5.  We exercised 
our bid protest jurisdiction in that case because the downselect 
decision precluded the protester from competing for future task orders 
under the remaining terms of the contract.  

Here, the protester's argument that failure to receive a task order 
under CLIN 0003 means that it is precluded from competing for further 
work under the contract is unpersuasive.  The contracts clearly 
contemplated the award of task orders under only three CLINs, 
representing three distinct phases of the work covered by the 
contract.  Contrary to the protester's argument--and unlike the facts 
in Electro-Voice --under the express terms of the contracts awarded 
here, there will be no other work to be performed within the scope of 
the contracts.  The overriding concern underlying the Electro-Voice 
decision--to protect the interests of the protester in competing for 
future task orders under the contract--is therefore not present here.  
Simply stated, the issuance of task orders under CLIN 0003 does not 
implement a downselection which eliminates Teledyne-Commodore from 
consideration for future work under its contract because there is no 
further work contemplated under its contract.  Moreover, since the 
agency anticipates filling its future needs through competitive 
acquisitions under which the protester will have an opportunity to 
participate, Teledyne-Commodore is not precluded from future 
participation in the ACWA Program.  Accordingly, we conclude that the 
restriction on protests of orders placed under a task order contract 
as contained in 10 U.S.C.  sec.  2304c(d) precludes our Office from 
exercising bid protest jurisdiction over Teledyne-Commodore's protest.

The protest is dismissed.

Comptroller General
of the United States

1. The RFP was issued by the U.S. Army Chemical and Biological Defense 
Command, now the U.S. Army Materiel Command Acquisition Center.

2. The agency issued the RFP in response to the National Defense 
Appropriations Act for 1997, Pub. L. No. 104-208,  sec.  8065, 110 Stat. 
3009, 3009-101-3009-102 (1996), which provides for "the conduct of a 
pilot program to identify and demonstrate not less than two 
alternatives to the baseline incineration process for the 
demilitarization of assembled chemical munitions . . . [and evaluation 
of] the effectiveness of each alternative chemical munitions 
demilitarization technology identified and demonstrated under the 
pilot program . . . ."  The statute essentially suspends construction 
activities on additional facilities for incineration until the agency 
has identified, analyzed, and reported to Congress on promising 
alternative technologies.

3. The RFP advised that the number of contractors selected for 
demonstration testing was subject to the availability of both program 
funds and government-approved demonstration test facilities.  RFP  sec.  
C.1.2.7.

4. The RFP states that concurrent with the Department of Defense's 
technology assessment here, the National Research Council (NRC) will 
perform independent assessments of all proposals which pass the 
threshold "go/no go" evaluation.  RFP  sec.  H.11.  At the conclusion of 
those assessments, the NRC will submit its findings and 
recommendations to the ACWA Program Manager, the Secretary of the 
Army, the Secretary of Defense, and Congress.  RFP  sec.  C.1.2.9.  Since 
the protester's proposal passed the threshold evaluation, the agency 
thus asserts that it is possible that Teledyne-Commodore's proposed 
technology will receive favorable recommendations by the NRC, which 
could result in placing the protester's technology in contention in 
future competitive procurements.

5. The protester maintains that the agency's argument that 
Teledyne-Commodore may be eligible to compete in future procurements 
for pilot efforts is inconsistent with the Army's conduct of earlier 
procurements to develop alternative technologies, where it restricted 
eligibility for pilot testing to technologies that had completed 
demonstration testing.  The agency states, however, that the NRC is 
reviewing the technologies of all seven firms that were awarded 
contracts and were issued task orders under CLIN 0001.  If one or more 
alternative technologies are successfully demonstrated and the NRC 
recommends one or more alternative technologies as "viable," it is the 
ACWA Program Manager's intent to compete any subsequent pilot effort 
under full and open competition based upon a performance-type 
specification or other form of statement of work which will permit 
competition.  The agency states that it is not its intent to limit the 
follow-on work effort to the three firms which have received CLIN 0003 
task orders.