TITLE:  	United Information Systems, Inc., B-282895; B-282896, June 22, 1999
BNUMBER:  B-282895; B-282896
DATE:  June 22, 1999
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United Information Systems, Inc., B-282895; B-282896, June 22, 1999

Decision

Matter of: United Information Systems, Inc.

File: B-282895; B-282896

Date: June 22, 1999

Michael A. Hordell, Esq., Laura L. Hoffman, Esq., and Erin K. Zack, Esq.,
Gadsby & Hannah, for the protester.

Mike Colvin, Department of Health and Human Services, 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

Protests alleging that contracting agency improperly evaluated protester's
proposals submitted in response to solicitations issued pursuant to
indefinite-quantity, indefinite-delivery contract are dismissed pursuant to
41 U.S.C. sect. 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 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.

DECISION

United Information Systems, Inc. (UIS) protests the exclusion of its
proposals from the competitive range under request for proposals (RFP) Nos.
N02-CO-94024 and N02-CO-94025, issued by the National Cancer Institute
(NCI), Department of Health and Human Services, for systems administration
and production of databases for the International Cancer Information Center
and for programming support for database maintenance and distribution
processes. UIS primarily argues that NCI unreasonably evaluated its
proposals.

We dismiss the protests.

According to the protester, the agency awarded UIS a multiple award task
order contract (N02-CO-84000) in December 1997, Protest at 3, and issued the
RFPs which are the subject of its protest on May 7, 1999. Id. at 2. The
agency states that the two RFPs here were issued to the multiple firms
holding umbrella contracts such as N02-CO-84000 as competitive task order
solicitations. Summary Dismissal Request, June 7, 1999, at 1. As such, the
agency argues that we are precluded from considering the protest by 41
U.S.C. sect. 253j(d) (1994), which provides that a "[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." See also Federal Acquisition Regulation sect. 16.505(a)(7).

The protester cites several decisions of our Office to argue that we should
consider the protest because NCI's actions suggest that the agency
intentionally chose a task order contract to circumvent the requirement to
conduct a fair and reasonable evaluation of proposals and to avoid review by
our Office. The decisions UIS cites discuss those limited situations where
we will consider protests of agency actions not usually subject to our
jurisdiction where the protester alleges that the agency was attempting to
circumvent applicable procurement statutes and regulations. Premier Vending,
B-256560, July 5, 1994, 94-2 CPD para. 8 (allegation that the agency was
improperly channeling its requirement through a nonappropriated fund
instrumentality); Sprint Communications Co., L.P., B-256586; B-256586.2, May
9, 1994, 94-1 CPD para. 300 (use of cooperative agreement instead of contract);
Oklahomans for Indian Opportunities, B-224097, Aug. 29, 1986, 86-2 CPD para. 252
(award of grant where contract allegedly required). The cases UIS relies on
are inapplicable here, however, since 41 U.S.C. sect. 253h(a) specifically
authorizes the head of an executive agency to enter into a task or delivery
order contract for the procurement of services or property. Thus, contrary
to UIS's position, there is no legal basis to object to the agency's
decision to enter into a task order contract to procure the required
services.

Further, we think that the restriction on protests of orders placed under a
task order contract as contained in 41 U.S.C. sect. 253j(d) applies here. The
restriction on protests regarding task orders was included in the Federal
Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, sect. 1004,
108 Stat. 3243, 3252-53 (1994), as part of FASA's treatment of task and
delivery order contracts. 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. [1] Rather, the restriction on protests is
part and parcel of the statutory scheme.

The protester argues that we should consider its protest because,
notwithstanding the "Task Order Request For Proposals" designation on the
solicitations, the RFPs are "stand-alone competitive procurements." Protest
at 3; Protester's Comments, June 10, 1999, at 4. In this connection, UIS
cites our decision in Teledyne-Commodore, LLC--Recon., B-278408.4, Nov. 23,
1998, 98-2 CPD para. 121, where we considered a protest concerning task orders
issued under multiple award contracts.

The protester's reliance on Teledyne-Commodore, LLC--Recon. is misplaced. In
that case, we exercised jurisdiction over the protest based on our
conclusion that, although the challenged task orders were issued under the
aegis of what purported to be indefinite-quantity, indefinite-delivery
contracts, those umbrella contracts involved neither recurring work nor an
indefinite quantity of work for an individual contractor, and the agency was
essentially conducting one competitive source selection to perform the
required work. By contrast here, there is no indication (and no allegation)
that the nature of the umbrella contract is such that the agency does not
have recurring needs or that it is conducting only a single competitive
source selection.

UIS finally argues that the statutory exception contained in 41 U.S.C.
sect. 253j(d) applies because the work required by the RFPs is "slightly
different than and beyond the scope" of the umbrella contract. Protest at 5.
Beyond that statement, however, and a subsequent assertion that "the work
involved differed from that permitted under existing task order contracts,"
Protester's Comments at 6, UIS provides no explanation or support for its
position. Without more, the protester's conclusory assertion is not
sufficient to state a valid basis for protest on this ground. See Bid
Protest Regulations, 4 C.F.R. sect. 21.1(c)(4) (1999). Further, we think that
this allegation is untimely. To be timely under our Regulations, protests
based upon alleged improprieties in a solicitation which are apparent prior
to the time set for receipt of initial proposals must be filed prior to that
time. 4 C.F.R. sect. 21.2(a)(1). Here, the agency states, and the protester does
not dispute, that both solicitations contained detailed statements of work
(SOW). Summary Dismissal Request, June 7, 1999, at 1. Accordingly, if UIS
believed that the SOWs were beyond the scope of the umbrella contract, it
was required to raise its objections either with the agency or with our
Office before the time set on May 17, 1999, for receipt of proposals. Since
UIS did not file its protest until June 4, this allegation is untimely, and
will not be considered.

In any event, even assuming that the work required by the RFPs was "slightly
different than" or beyond the scope of the basic contract, as UIS maintains,
since the RFPs were issued only to holders of that contract, and UIS was
permitted to compete, we fail to see, and the protester does not explain,
how it could have been prejudiced thereby. Since competitive prejudice is an
essential element of every viable protest, Diverco, Inc., B-259734, Apr. 21,
1995, 95-1 CPD para. 209 at 3, there would be no basis to disturb the awards at
issue on this ground. Merrick Eng'g, Inc., B-238706.3, Aug. 16, 1990, 90-2
CPD para. 130 at 4, recon. denied, B-238706.4, Dec. 3, 1990, 90-2 CPD para. 444.

The protests are dismissed.

Comptroller General

of the United States

Notes

1. We have held 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 without further competition under the remaining terms of the
contract. Electro-Voice, Inc., B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD
para. 23 at 5. UIS does not allege, however, that the procurements at issue here
were structured so as to result in a "downselection" as described in
Electro-Voice, or that the firm will otherwise be eliminated as a source for
future work under its contract. See The Intrados Group, B-280130, June 22,
1998, 98-1 CPD para.168.