TITLE: Computers Universal, Inc., B-293548, April 9, 2004
BNUMBER: B-293548
DATE: April 9, 2004
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Computers Universal, Inc., B-293548, April 9, 2004
Decision
Matter of: Computers Universal, Inc.
File: B-293548
Date: April 9, 2004
Peter Cannon for the protester.
Maj. Kateni T. Leakehe and Capt. Richard M. Sudder, Department of the
Army, for the agency.
Paul N. Wengert, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency obtained services outside scope of broad
indefinite-delivery, indefinite-quantity contract through delivery order
is denied where contract under which delivery order was issued contains
broad statement of objectives that reasonably encompasses services at
issue.
DECISION
Computers Universal, Inc. (CUI), a small business, protests the decision
of the Department of the Army to obtain non-destructive inspection (NDI)
and non‑destructive testing (NDT) services in support of Eighth
United States Army aviation units in Korea through a pre-existing delivery
order issued to DynCorp under contract No. F34601‑97‑D-0422,
which was awarded by the Department of the Air Force. CUI objects that
obtaining NDI/NDT services under the delivery order improperly increases
the scope of the Air Force contract.
We deny the protest.
On October 14, 2003, at the request of the Army, the Air Force issued
delivery order No. 0422‑0122 under the DynCorp Contract Field Team
(CFT) contract.[2] The delivery order specified a delivery order *ceiling
amount* of $3,995,000. Agency Report, Tab 15, Order for Supplies or
Services DD-1155, at 1. In January 2004, the Army decided not to exercise
an option under CUI*s contract and thus allowed CUI*s contract for NDI/NDT
services to expire. At the same time, the Army began to obtain NDI/NDT
services under delivery order No. 0422-0122. This protest followed.
The Air Force CFT contract with DynCorp was one of four multiple award,
indefinite-delivery, indefinite-quantity (IDIQ) CFT contracts awarded on
July 31, 1997 under request for proposals (RFP) No. F34601-97-R-0008. Air
Force Contracting Officer*s Statement at 1. The CFT contract provided for
a 2-year base term, followed by four successive 2-year option periods,
with a maximum term of 10 years.[3] RFP S: I‑195. The Air Force
emphasizes that the CFT contract is a flexible worldwide contracting
vehicle.[4] The protester does not hold a CFT contract.
The Federal Acquisition Streamlining Act (FASA), as codified at 10 U.S.C.
S: 2304c(d) (2000), generally precludes protests in connection with the
issuance or proposed issuance of a task order. However, protests on the
ground that the order increases the scope, period, or maximum value of the
contract under which the order is issued are authorized under FASA. See
Floro & Assocs., B‑285451.3, B‑285451.4, Oct. 25, 2000, 2000
CPD P: 172 at 6. The protester argues that inclusion of the NDI/NDT
services under delivery order No. 0422-0122 is improper because this work
is outside the scope of the CFT contract.
The CFT contract did not include a statement of work as such. Rather, a
two-page statement of objectives was appended to the RFP, which set forth
one program objective, nine contract objectives, and one management
objective, all of which were quite general. The single program objective
was stated as follows:
The objective of this program is for the offeror to provide supplemental
on-site Organizational, Intermediate, and Depot level maintenance support
for modification, maintenance, and repair of various DoD [Department of
Defense] weapons systems and associated support equipment for any Federal
Agency at locations both in CONUS [continental United States] and OCONUS
[outside of continental United States] at an affordable cost.
RFP Statement of Objectives for Contract Field Teams at 1. In addition,
the contract objectives consisted of broad goals, such as *utiliz[ing] a
program management system . . .* and *plan[ning] and execut[ing] a safety
program.* Id. at 1‑2. Further, the individual contract line items
were described as relating to labor or services that were:
necessary to perform modification, maintenance, or repair on various DOD
weapon systems and support equipment at world-wide locations as
contemplated in AFMCR 66-33 & AFMC FAR Supplement 5392.5 and in accordance
with individual delivery orders issued.
RFP S: B. DynCorp included a labor category for an *inspector* in its CFT
contract.
The record shows that NDI/NDT services are utilized by the Army *to
perform modification, maintenance, or repair on various DOD weapon systems
and support equipment,* and consequently these services are the type that
potential offerors reasonably could have anticipated would be covered by
the CFT contract.[5] Agency Report at 4. The protester does not
meaningfully argue otherwise.[6] We, therefore, conclude that NDI/NDT
services reasonably fall within the scope of the CFT contract.
The protester also argues that the requirements and procedures for
performing NDI/NDT services are not adequately defined and will result in
inferior or dangerous performance in delivery order No. 0422‑0122.
CUI also claims that the decision to obtain NDI/NDT services from DynCorp
was made because of a bias in favor of DynCorp. However, we are precluded
by statute from considering these grounds of protest in connection with
the issuance of the delivery order to DynCorp, and we thus dismiss these
protest grounds. 10 U.S.C. S: 2304c(d) (2000).[7]
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] As used here, NDI/NDT services employ various techniques to determine
the integrity, composition, physical, electrical, or thermal properties,
or dimensions of a structure or component without causing a change in any
of these characteristics. The methods include liquid penetrant, magnetic
particle, electromagnetic, ultrasonic, and penetrating radiation. Agency
Report, Tab 18, Army Technical Manual TM 1‑1500‑204-23-7 (July
31, 1992), at 2-3.
[2] A contract field team is essentially a team of skilled technicians.
Army Dismissal Request at 2.
[3] The contract also specifies that *[o]rders issued prior to the
expiration date of the contract will be carried to completion provided . .
. performance does not normally exceed 120 days beyond the period of the
contract.* RFP S: F-12.
[4] While initially issued for a *ceiling* total award amount of $210
million, through a series of modifications, the ceiling now approaches a
billion dollars. Agency Report, Tab 6, CFT Contract Modification No.
P00025, at 2.
[5] Although this protest does not directly present the issue of the
breadth of the CFT contract, we nevertheless reiterate our concern about
whether the use of such broad long-term IDIQ contracts undermines the
efficiencies that full and open competition would produce. E.g., Federal
Procurement: Spending and Workforce Trends, GAO‑03-443 (Washington,
D.C.: Apr. 2003) at 14. We have also recognized that the use of IDIQ
contracts with very broad and often vague statements of work may place an
unreasonable burden upon potential offerors, especially small businesses,
which may be required to guess as to whether particular work, for which
they are interested in competing, will be acquired under a particular IDIQ
contract. See Valenzuela Eng*g, Inc., B‑277979, Dec. 9, 1997, 98-1
CPD P: 51 (Letter to the Acting Sec*y of the Army, Jan. 26, 1998, at 2);
cf. Phoenix Scientific Corp., B‑286817, Feb. 22, 2001, 2001 CPD
P: 24 at 13 (IDIQ contract to provide unplanned maintenance services for
all Air Force-managed weapons systems was not too broad where Air Force
placed concrete reviewable limits on availability of contract).
[6] CUI presented a memorandum from an Army official who, just 2 years
earlier, had become dissatisfied with DynCorp*s performance of these same
services and had indicated that the CFT contract was not an adequate
vehicle to ensure proper performance of the services. That memorandum
eventually led to CUI responding to a solicitation to provide NDI/NDT
services. The Army has now reverted to utilizing the CFT contract. We do
not find that these earlier views about the scope of the CFT contract
preclude the Army from reasonably deciding that the CFT contract is
suitable today.
[7] We note, however, that with regard to the alleged inadequacy of the
specifications contained in the delivery order, our Office generally will
not consider the merits of an allegation that a more restrictive
specification is necessary to serve the government*s interest. Assurance
that sufficiently rigorous specifications are used in a solicitation is
ordinarily a primary concern to procurement personnel and user activities,
since it is they who must suffer any difficulties resulting from
inadequate specifications, not for resolution under our bid protest
function. Miltope Corp.--Recon., B-188342, June 9, 1977, 77-1 CPD P: 417
at 2; aff*d, Miltope Corp.--Recon. (Second), B-188342, July 1, 1977, 77-2
CPD P: 3 at 1. We also note that CUI*s claim that the decision to obtain
NDI/NDT services from DynCorp was made because of a bias in favor of
DynCorp is fundamentally based on speculation and inference, leaving the
protest essentially unsupported factually. Government officials are
presumed to act in good faith, and we will not attribute unfair or
prejudicial motives to procurement officials on the basis of inference or
supposition. Triton Marine Constr. Corp., B-250856, Feb. 23, 1993, 93-1
CPD P: 171 at 6.