BNUMBER:  B-280130 
DATE:  June 22, 1998
TITLE: The Intrados Group, B-280130, June 22, 1998
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Matter of:The Intrados Group

File:     B-280130

Date:June 22, 1998

Richard Maresca, Esq., Porter, Wright, Morris & Arthur, for the 
protester.
Rumu Sarkar, Esq., Agency for International Development, for the 
agency.
Paula Williams, Esq., Office of the General Counsel, GAO, participated 
in the preparation of the decision.

DIGEST

1.  GAO dismisses protest of an order placed under a task order 
contract pursuant to 41 U.S.C.  sec.  253j(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 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 exception does 
not apply.  

2.  Although restriction on protests of orders placed under a task 
order contract, as contained in 41 U.S.C.  sec.  253j(d), does not apply to 
protests of downselections implemented by the placement of a task 
order under a multiple award task order contract where the task order 
results in the elimination of one of the contractors from 
consideration for future orders, this exception to the protest 
restriction does not apply where an agency merely consolidates several 
task orders under one task order, but is not implementing a downselect 
by issuance of that task order.

DECISION

The Intrados Group protests the United States Agency for International 
Development's (AID) issuance of a task order to Financial Markets 
International under indefinite-quantity, indefinite-delivery, multiple 
award contracts awarded under request for proposals (RFP) No. 
OP/CC/N-94-2 for technical assistance services to support the 
privatization and economic restructuring program for Europe and the 
New Independent States (NIS) of the former Soviet Union.

We dismiss the protest.

The RFP described privatization services to be provided over a 5-year 
period for the following five functional activities:  (a) 
transactions; (b) financial sector restructuring and privatization; 
(c) privatization advisory and training services and support; (d) 
capital and financial markets to support privatization; and (e) public 
information.  These services were to be provided on a 
time-and-materials, level-of-effort task order basis.  Offerors could 
submit proposals for one or more of the functional activities, and 
proposals for each activity would be separately evaluated.  Multiple 
awards were contemplated under each functional activity and each award 
was to be for a minimum of $10,000.

Thirty-six firms, including Intrados, submitted proposals for the 
capital and financial markets functional activity, known as Functional 
Activity D.  Intrados and eight other firms were selected for contract 
award under Functional Activity D.  The contracts awarded to these 
firms provided for the issuance of task orders for technical 
assistance services in support of capital and financial markets in 
connection with AID's privatization related work throughout Central 
and Eastern Europe and the NIS.

Since 1995, Intrados has been invited to compete for 22 task orders 
under Functional Activity D, including two task orders issued 
subsequent to the task order which is the subject of this protest.  To 
date, Intrados has been issued six task orders under Functional 
Activity D, in the aggregate amount of $18,232,543, pursuant to which 
Intrados has provided technical services in connection with AID 
programs in Russia, Romania, Kazakstan, and Moldova.

Intrados argues that the agency's competition for this task order was 
flawed because the agency did not follow the stated evaluation 
criteria and scoring scheme and that its technical proposal was 
misevaluated.  Intrados recognizes that 41 U.S.C.  sec.  253j(d) (1994) 
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."  
However, Intrados 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 at 5.  

In that decision, we concluded that the 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.  Intrados argues 
that the task order protested here represents a consolidation into 
"one last task order" of the AID capital market work in Romania that 
it and others performed under previously awarded task orders.  
Intrados asserts that "[t]he inevitable consequence of [AID's] task 
order competition is to 'downselect,' as that term was used in 
Electro-Voice, one [AID] contractor working in Romania and exclude all 
others from all remaining Romania work."  Intrados thus concludes 
that, based on our decision in Electro-Voice, our Office has 
jurisdiction to review the protested competition.

AID responds that this was not a "downselection," but rather the 
routine issuance of a task order that by no means eliminates Intrados 
as a source for AID work under its contract, which is not limited to 
Romania.  AID notes that, since 1995, Intrados has been invited to 
compete on 22 task orders under its contract, and has been issued six 
task orders for work in four different countries, including Romania.  
Although it has no further projected task orders in Romania, AID plans 
to conduct two more task order competitions during 1998 for services 
under the multiple award contracts and anticipates that Intrados will 
be provided an opportunity to compete for these task orders.  AID also 
expects there will be further opportunities for Intrados in 1999.  AID 
therefore argues that this is not a downselect as described in 
Electro-Voice, and that this particular task order, contrary to 
Intrados's position, will not eliminate Intrados from receiving future 
task orders for the duration of its contract.

In our view, the Electro-Voice decision is not applicable here and we 
think that the restriction on protests of orders placed under a task 
order contract as contained in 41 U.S.C.  sec.  253j(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.  Once the downselection was made, there would be no 
ongoing competition for orders among the multiple award contractors as 
envisioned by the law.  The legislative history concerning the 
multiple award task order contracting statutory provisions shows that 
these provisions were intended to promote an ongoing competitive 
environment in which each contractor was fairly considered for each 
task order issued.  Electro-Voice, supra.  

Here, Intrados has received a number of task orders in the past, it 
was provided an opportunity to compete for the consolidated Romanian 
work, and there is other work, albeit probably not in Romania, for 
which it will have an opportunity to compete under its contract.  
While Intrados may be foreclosed from further work in Romania, unlike 
the situation in Electro-Voice, where the protester was eliminated 
from any more task orders under its contract, Intrados is not 
similarly foreclosed, given the scope of the Intrados contract with 
AID, which provides for technical services throughout Central and 
Eastern Europe and the NIS.  Simply stated, the protested task order 
does not implement a downselect which eliminates Intrados from future 
work under its contract.  Further, the fact that this protested task 
order arguably may be the last order for services in Romania does not 
convert this task order into a "downselection."  Under its contract 
with AID, Intrados is clearly still eligible to compete to provide 
capital and financial market services in countries other than Romania.

We dismiss the protest.

Comptroller General
of the United States