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