TITLE:   Makro Janitorial Services, Inc., B-282690, August 18, 1999
BNUMBER:  B-282690
DATE:  August 18, 1999
**********************************************************************
Makro Janitorial Services, Inc., B-282690, August 18, 1999

Decision

Matter of: Makro Janitorial Services, Inc.

File: B-282690

Date: August 18, 1999

Miguel Valladares for the protester.
Thomas W. Burt, Esq., Department of the Army, for the agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that a task order for housekeeping services improperly exceeds the
scope of the original contract for preventive maintenance and inventory,
repairs and facility survey activities, that was subsequently modified to
include the services covered by the task order, is sustained where the
original contract as competed did not reasonably provide for the procurement
of the housekeeping services added by the modification, and the modification
was therefore outside the scope of the original contract. The use of the
task order to obtain these services was improper and the services should be
obtained through full and open competition.

DECISION

Makro Janitorial Services, Inc. protests the Department of the Army's
failure to compete the procurement of housekeeping services for locations at
the Kimbrough Ambulatory Care Center (Ft. Meade), Aberdeen Proving Grounds,
and Edgewood Arsenal, Maryland. The agency issued task order No. 0084 for
these housekeeping services to BMAR and Associates, Inc. under contract No.
DACA01-96-D-0023, which was for preventive maintenance and equipment
inventories at medical facilities in the continental United States,
Caribbean, Alaska, and Hawaii. Contracting Officer's (CO) Statement at 1.
The BMAR contract was modified in 1997 to include housekeeping and exterior
grounds maintenance services. BMAR Contract at C-7-1 to C-7-5. Macro
contends that the issuance of the task order in lieu of competing the
procurement was improper and resulted in prices higher than those that would
have been obtained through competition. Protester's Comments at 8-10.

We sustain the protest.1 [1]

An indefinite-delivery/indefinite-quantity (IDIQ) contract was competitively
awarded by the U.S. Army Corps of Engineers, Mobile District Contracting
Division, to BMAR on May 2, 1996, for a base year with four 1-year option
periods at a total not-to-exceed value of $27,500,000. The work would be
accomplished through fixed-priced task orders. CO Statement at 1-2. Under
the contract, BMAR would supply all plant, labor, materials, and equipment
in performing "Real Property Inventory (RPI), Demand Maintenance Repairs,
and surveys of Medical Facilities." BMAR Contract sect. C-1.1.1. As noted, the
contract was modified subsequently to include housekeeping and exterior
grounds maintenance services. As relevant here, the contract modification
defines "Housekeeping Services" as "all labor and materials to maintain the
cleanliness of all medical facility spaces." Id. sect. 2.1.3.1. The cleaning
services include damp wiping and dusting, spot cleaning of surfaces,
vacuuming, and cleaning plumbing fixtures, windows, beds and linens. The
BMAR contract was awarded as part of the U.S. Army Medical Command's program
to ensure that its hospitals, clinics, and other facilities would meet the
standards of the Joint Commission on Accreditation of Healthcare
Organization standards by means of a collection (toolbox) of contracts that
would be available to the facility manager at each medical facility. CO
Statement at 1.

The agency notes that the procurement was described in the Commerce Business
Daily under Code M, operation of government-owned facilities, and that in
paragraph 1.03 of the solicitation/contract it was stated that the covered
work previously was done in-house (that is, some of the larger installations
performed their own housekeeping). Further, in solicitation/contract
paragraph 2.1.1, "Maintenance" is defined as that which keeps real property
in such a condition as to be usable continuously for its intended purpose.
The agency asserts that housekeeping is necessary to keep the facilities
functional. The agency argues that since the intended purpose of the
contract was for the successful operation of the facilities, the 1997
modification was merely a clarification of the original requirements under
BMAR's contract, rather than a change that was outside the scope of the
original contract. Agency's Supplemental Comments at 1-2.

The Competition in Contracting Act of 1984 (CICA) requires "full and open
competition" in government procurements as obtained through the use of
competitive procedures. 10 U.S.C. sect. 2304(a)(1)(A) (1994). Once a contract is
awarded, however, our Office will generally not review modifications to that
contract, because such matters are related to contract administration and
are beyond the scope of our bid protest function. 4 C.F.R. sect. 21.5(a);
Stoehner Sec. Servs., Inc., B-248077.3, Oct. 27, 1992, 92-2 CPD para. 285 at 4.
The exception to this rule is where it is alleged that a contract
modification is beyond the scope of the original contract, since the work
covered by the modification would otherwise be subject to the statutory
requirements for competition (absent a valid determination that the work is
appropriate for procurement on a sole-source basis). MCI Telecomms. Corp.,
B-276659.2, Sept. 29, 1997, 97-2 CPD para. 90 at 7.

In determining whether a modification triggers the competition requirements
in CICA, we look to whether there is a material difference between the
modified contract and the contract that was originally awarded. Id.; see
AT&T Communications, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed. Cir.
1993). Evidence of a material difference between the modification and the
original contract is found by examining any changes in the type of work,
performance period, and costs between the contract as awarded and as
modified. MCI Telecomms. Corp., supra, at 7-8. We also consider whether the
solicitation for the original contract adequately advised offerors of the
potential for the type of change found in the modification. CAD Language
Sys., Inc., B-233709, Apr. 3, 1989, 89-1 CPD para. 342 at 4. The overall inquiry
is "whether the modification is of a nature which potential offerors would
reasonably have anticipated." Ervin and Assoc., Inc., B-278850, Mar. 23,
1998, 98-1 CPD para. 89 at 8, quoting Neil R. Gross & Co., Inc., B-237434, Feb.
23, 1990, 90-1 CPD para. 212 at 3.

Based on the record, we conclude that the modification to include
housekeeping services and, therefore, the task order issued based on the
modification, were beyond the scope of the contract as originally awarded.
As noted above, under BMAR's original IDIQ contract, the scope of work
requires the contractor to furnish all work for "Real Property Inventory
(RPI), Demand Maintenance Repairs, and surveys of Medical Facilities." BMAR
Contract sect. C-1.1.1. The detailed breakdown of work to be performed all
relates to the above identified categories of work. For example, the
contractor is required to "Prepare and execute a program for performing Real
Property Inventories, Preventive Maintenance & Inventory, Demand Maintenance
Repairs . . . for the facilities listed above and all equipment, controls,
and building systems." Id. sect. C-1.1.1.1. Under another requirement, the
contractor must keep records of each repair and maintenance task and
preventive maintenance and inventory data on equipment, including boiler
reports. Id. sect.sect. C-1.3.3.2, 1.3.3.3. There is nothing in the original scope
of work that even remotely suggests that the contract contemplated the
acquisition of housekeeping services as defined by the modification.

Further, the personnel required under the contract are those associated with
facility maintenance repair, such as HVAC mechanic, boiler operator,
plumber/pipefitter, general maintenance mechanic, electrician, painter,
carpenter, electronic technician, welder and kitchen equipment mechanic. Id.
at B-46 to B-47. In addition, the term "Maintenance" is defined as "[t]he
recurring work required to keep real property in such a condition that it
may be utilized continuously . . . for the intended purpose," and the term
"Preventive Maintenance" is defined as "[t]he systematic and periodic
inspection and servicing which is required to prevent breakdown and to
prolong the life of real property." Id. sect.sect. C-2.1.1, 2.1.1.1. Similarly,
emergency and demand maintenance are defined to require the maintaining of
the real property and equipment, i.e., the physical plant. Id. sect.sect. 2.1.1.2,
2.1.1.3.

Moreover, in addition to the language of the original contract which, in our
view, supports the conclusion that housekeeping services were not
contemplated under the original contract, the various letters and memorandum
from agency officials regarding the intent and purpose of the original
contract also support our conclusion. For example, the memorandum of
agreement (MOA) between the Army Corps of Engineers and the Army Medical
Command that establishes the framework for the Corps' support to the Army
medical facilities identifies the goods and services to be provided as
including "project management, contract award and administration, design,
A-E support services, technical support and construction management." Agency
Report, Tab N, MOA, at 1. It further states that the agreement is limited to
"facility operation, maintenance, repair and minor construction." The
agreement more specifically covers "scheduled or predictive maintenance" and
"repairs to real property." Id. The other correspondence and memorandum in
the record concerning the purpose of this program and the BMAR contract are
consistent with the MOA. For example, in one document, the Director of
Sustainment states that the contract is intended to address "an
ever-increasing backlog of maintenance and repair" and to meet "the basic
requirements that medical facilities be repaired, if necessary, to meet . .
. Life Safety Code Standards, and that maintenance be documented on critical
life support systems." Agency Report, Tab C, Statement of Director of
Sustainment. Finally, a U.S. Army Medical Command memorandum concerning the
"toolbox" of contracts states that:

The Mobile contracts have a specific role in this program. The contracts
support the Sustainment portion of the program . . . [which] includes
preventive maintenance services, minor repair, and major repair . . . . The
Facility Support Program is absolutely essential to our future ability to
attain accreditation and adequately maintain our . . . building
infrastructure.

Agency Report, Tab D, Memorandum from the Assistant Chief of Staff for
Installations, Environment, and Facility Management to Mr. Leo Hickman, U.S.
Army Corps of Engineers (June 3, 1999).

The agency's argument that the modification did not materially expand the
scope of the contract, since the original contract--which covered all work
necessary for the maintenance of the real property--reasonably included
housekeeping and exterior grounds maintenance, is not persuasive. The
specific contract language and explanatory documents, as discussed above,
show that the program and contract are intended to address the facilities'
physical plant. There is simply no indication that the original contract
contemplated housekeeping services or that any of the Army officials in
charge of the program believed that housekeeping was a service contemplated
under the program. We do not agree that the use of the term "maintenance" is
a "catch-all" phrase that justifies a modification which could not
reasonably have been anticipated under the original competition. The term
must be read in context and, as noted above, the language of the contract
and the explanatory documentation do not support the Corps' position that
the scope of the IDIQ contract contemplated housekeeping services. See Ervin
and Assoc., Inc., supra, at 8-9. We conclude that the modification and,
therefore, the task order issued to BMAR for housekeeping services, were
beyond the scope of the original contract.

Accordingly, we sustain the protest and recommend that the task order
for the three locations be terminated and that the Army procure the
housekeeping services in accordance with the competition requirements of
CICA, 10 U.S.C. sect. 2304 (a)(1)(A). We also recommend that the protester be
reimbursed the reasonable costs of filing and pursuing its protest,
including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). Makro's
certified claim for such costs, detailing the time expended and the costs
incurred, must be submitted directly to the agency within 60 days after
receipt of this decision.

Comptroller General
of the United States

Notes

1. The agency initially contends that the Makro protest is untimely since
the task order was issued on April 15 and the protest was not filed until
early May. CO Statement at 4-5. We do not agree. While the task order was
issued on April 15, Makro had no knowledge of how the agency intended to
obtain its housekeeping needs until it was informed on May 6 that the
services were being obtained by a task order under BMAR's previously awarded
preventive maintenance contract. Protest at 3. Since its protest was filed
on May 10, within 10 calendar days of learning on May 6 that BMAR was issued
a task order under its prior contract, its protest is timely. Bid Protest
Regulations, 4 C.F.R. sect. 21.2(a)(2) (1999).

Additionally, there is no indication in the record, and the agency does not
contend, that Makro was aware until May 6, 1999 of modification 8 which
added housekeeping and exterior maintenance services to the BMAR contract in
1997. Accordingly, this situation is unlike that in Access Research Corp.,
B-281807, Apr. 5, 1999, 99-1 CPD
para. ___, in which we found untimely a challenge to a modification issued 3 ï¿½
years earlier where the protester acknowledged it was aware at the time of
the agency's actions.