TITLE:  Hospital Klean, Inc., B-286791, December 8, 2000
BNUMBER:  B-286791
DATE:  December 8, 2000
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Hospital Klean, Inc., B-286791, December 8, 2000

Decision

Matter of: Hospital Klean, Inc.

File: B-286791

Date: December 8, 2000

Johnathan M. Bailey, Esq., for the protester.

Donald E. Barnhill, Esq., Douglas & Barnhill, for BMAR & Associates, Inc.,
an intervenor.

Steven W. Feldman, Esq., and Craig R. Schmauder, Esq., Department of the
Army, for the agency.

Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in preparing the decision.

DIGEST

Protest that contracting agency improperly proposes to issue a task order
under an indefinite-delivery/indefinite-quantity contract is dismissed
pursuant to 10 U.S.C. sect. 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.

DECISION

Hospital Klean, Inc. protests the proposed issuance of a task order to BMAR
& Associates, Inc. by the United States Army Corps of Engineers, Huntsville
Center, Alabama, for hospital housekeeping services at the Womack Army
Medical Center, Fort Bragg, North Carolina. The Army states that it proposes
to issue the task order under an indefinite-delivery/indefinite-quantity
(ID/IQ) contract (No. DACA87-00-D-0004) that it awarded to BMAR on April 26,
2000. Hospital Klean contends that the agency intends improperly to issue
the task order on a sole-source basis and that the requirement should have
been set aside under the Small Business Administration's (SBA) section 8(a)
program.

We dismiss the protest.

The contract awarded to BMAR states that it is to provide operation and
maintenance or minor repairs and replacement services to government medical
facilities, and specifically provides that it is an "[ID/IQ contract], as
defined in [Federal Acquisition Regulation] FAR sect. 16.504," and that the
agency intends to issue task orders (fixed price, time and materials, or a
combination of both types) for the required services. Agency Request for
Summary Dismissal, exh. 1, Contract sect. B, para. 6, at 3. The statement of work
(SOW) specifically enumerates all of the services that could be obtained, as
follows:

The services provided shall include those both inside and outside the
facilities including grounds, Hospital Aseptic Management Systems (HAMS)
Service, and custodial services. . . .Custodial services will include
general housekeeping, trash collection and removal.

Id. sect. C para. 1.1, at 7.

As the Army notes, 10 U.S.C. sect. 2304c(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." The Army argues that the statute precludes our
consideration of the protest because the protest does not raise any of the
enumerated statutory exceptions.

The protester disagrees with the agency's position, arguing that it
"supplemented its protest to specifically challenge award under the contract
. . . as being outside the intended scope of that contract, and a violation
of FAR sect. 19.502.2." Protester's Comments, Nov. 29, 2000, at 3. According to
Hospital Klean, therefore, our Office is not precluded from considering the
protest. Hospital Klean also maintains that the requirement should have been
set aside under the SBA's section 8(a) program. According to Hospital Klean,
this contention is properly for consideration by our Office at this
juncture.

As a preliminary matter, we think that the protester's contention that the
requirement should have been set aside for 8(a) concerns is untimely. We
further conclude that 10 U.S.C. sect. 2304c(d) precludes our considering
Hospital Klean's challenge to the proposed issuance of the task order to
BMAR. Below we discuss our conclusions in greater detail.

Untimely Allegation

On November 20, subsequent to filing its initial protest letter, Hospital
Klean supplemented its protest to argue that the requirement should have
been set aside exclusively for small businesses under the SBA's section 8(a)
program. Although Hospital Klean couched this allegation in terms of a
challenge to the issuance of the proposed task order, it is essentially a
challenge to the terms of the underlying solicitation that resulted in the
award of the ID/IQ contract to BMAR. In this connection, the Army explains,
and the record shows, that the underlying solicitation clearly placed
Hospital Klean on notice that the agency intended to obtain housekeeping
services under the contemplated ID/IQ contract. Accordingly, if Hospital
Klean believed that the services covered by the proposed order should have
been set aside exclusively for 8(a) firms, as it contends, it was required
to raise this issue prior to the time set for receipt of initial proposals
under the solicitation. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a) (2000).
Since Hospital Klean did not raise its objection until November 20--7 months
after award--its objection is untimely, and will not be considered. Dunn
Eng'g Assocs., B-266273, Feb. 9, 1996, 96-1 CPD para. 59 at 2 n.1.

Relying on letters our Office issued to the Departments of the Air Force and
Army, see B-277979, Jan. 26, 1998, 98-1 CPD para. 51, Hospital Klean argues that
its protest should not be dismissed because the SOW is so broad that
Hospital Klean could not have known that the agency intended to issue an
order solely for housekeeping services under any of the multiple-award
contracts contemplated by the solicitation. Hospital Klean argues,
therefore, that since the solicitation did not reasonably inform it that the
agency could order the work covered by the order at issue here, we should
consider its protest allegation that the proposed task order is not within
the scope of the contract. Hospital Klean's argument is without merit.

As already explained, the SOW specifically enumerated all of the services
that the agency could obtain by issuing task orders under the contract,
including general housekeeping services. Further, nothing in the SOW
suggests that the agency would be precluded from issuing orders for only one
category of tasks listed there. Since the SOW clearly placed Hospital Klean
on notice that housekeeping services are among the tasks that the agency
could order, either individually or as part of a more comprehensive order
combining other services, any challenge to the inclusion of these services
in the ID/IQ contract should have been raised before the time set for
receipt of initial proposals under that solicitation. Since Hospital Klean
failed to do so, its allegation is untimely. 4 C.F.R. sect. 21.2(a).

Issuance of Proposed Task Order

Despite the protester's view to the contrary, we see no reason why the
statutory restriction on protests set forth at 10 U.S.C. sect. 2304c(d) is not
applicable here. The only issue Hospital Klean raised in its initial protest
letter concerned the proposed issuance of the task order to BMAR on a
sole-source basis. Specifically, Hospital Klean stated that "[t]he basis of
this protest is that the agency has violated the Competition in Contracting
Act and its implementing regulations by awarding this

requirement to BMAR on a sole source basis without justification." Protest,
Nov. 9, 2000, at 1. Subsequently, Hospital Klean supplemented its protest,
explaining as follows:

Hospital Klean, Inc. hereby files this supplement to the above referenced
protest to provide further factual detail recently obtained by Hospital
Klean. At the time of filing of the original protest, Hospital Klean was
unaware of the contractual vehicle through which the agency intended to
improperly satisfy its requirement for hospital housekeeping services on a
sole source basis. The agency has since informed Hospital Klean that the
agency will be accomplishing that non-competitive award via a task order to
be issued under contract number DACA87-00-D0004.

* * * * *

The legal basis for challenging this proposed issuance of the task order to
BMAR & Associates, Inc. remains the same. Hospital Klean files this
supplement merely to clarify as a factual matter the non-competitive
contractual vehicle through which the agency intends to satisfy the subject
requirement.

* * * * *

Hospital Klean hereby modifies its document request to include a copy of
contract DACA87-00-R-0004 and any amendments so that it can be determined
whether the subject requirement is within the scope of work of that
contract.

Supplemental Protest, Nov. 20, 2000, at 1-2 (emphasis added).

Thus, contrary to the protester's assertions, it did not argue in its
initial or supplemental filings that the proposed task order exceeds the
scope of the underlying contract. Rather, as confirmed by the quoted
language above, Hospital Klean maintained in both of its submissions that
the agency improperly proposed issuing the task order on a sole-source
basis. Indeed, in its reply to the agency's dismissal request, Hospital
Klean reiterates that "[t]he stated basis for Hospital Klean's original
protest was that the agency intended to award the subject housekeeping
service requirement to BMAR without conduct of competition," further
highlighting the central issue in its protest. Supplemental Comments, supra,
at 3.

Further, a fair reading of Hospital Klean's November 20 submission does not
support the protester's assertion that it specifically challenged the
proposed task order as being beyond the scope of the underlying ID/IQ
contract. The only reference in its November 20 supplemental protest to the
task order being "out of scope" appears in the section, quoted above, where
Hospital Klean requests a copy of the contract so that it may then determine
whether "the subject requirement is within the scope of work of that
contract." We do not consider Hospital Klean's supplemental document request
to be a protest. In this regard, Hospital Klean's submission contains no
stated objection to or expression of dissatisfaction with the scope of the
proposed task order, nor is there any request for agency relief or other
action. As such, Hospital Klean's supplemental document request cannot
reasonably constitute a protest. See Federal Acquisition
Regulation sect. 33.101(b)(2); compare Great Southwestern Constr., Inc.,
B 252917, Apr. 14, 1993, 93-1 CPD para. 322 (protester's letter was not an
agency-level protest since it did not request any response or relief from
the agency) with American Material Handling, Inc., B-250936, Mar. 1, 1993,
93-1 CPD para. 183 (protester's letter was clearly an agency-level protest since
it recommended changes in the solicitation specifications and requested a
response from the agency to its letter).

In conclusion, it is undisputed that the vehicle by which the Army has
elected to obtain the required services is a task order issued under BMAR's
ID/IQ contract. As such, absent certain exceptions not applicable here, our
Office is without authority to consider Hospital Klean's challenge to the
proposed issuance of the task order by virtue of the restrictions on
protests set forth at 10 U.S.C. sect. 2304c(d).

The protest is dismissed.

Anthony H. Gamboa

Acting General Counsel