TITLE:  Professional Performance Development Group, Inc., B-294054.3, September 30, 2004
BNUMBER:  B-294054.3
DATE:  September 30, 2004
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   Decision

   Matter of:   Professional Performance Development Group, Inc.

   File:            B-294054.3

   Date: September 30, 2004

   John S. Pachter, Esq., and Erin R. Karsman, Esq., Smith Pachter McWhorter
& Allen PLC, for the protester.

   David T. Copenhaver, Esq., Bureau of the Public Debt, Department of the
Treasury, for the agency.

   Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester's challenge to an agency's decision about which vendors under a
multiple-award contract will be eligible to compete for which task
orders--a decision based on the agency's interpretation of a contract
clause that apportions eligibility for the award of task orders among
vendors--is not for review by the Government Accountability Office.

   DECISION

   Professional Performance Development Group, Inc. (PPDG) protests a
decision by the Bureau of the Public Debt, Department of the Treasury, to
limit the competition for certain task orders under multiple-award
contract No. TPD-04-C-0018 to small disadvantaged and Historically
Underutilized Business Zone (HUBZone) small businesses. PPDG argues that,
under the terms of the RFP, the agency was required to provide a fair
opportunity for all of the multiple-award contract holders (hereinafter,
the vendors) to compete for these task orders, rather than limiting
eligibility for receipt of these orders to small business vendors.

   We dismiss the protest.

   The Bureau of the Public Debt awards contracts on behalf of the Department
of the Treasury's nine FedSource branch offices, which operate as part of
the Treasury's "franchise fund."[1]  The branch offices essentially market
and provide a wide range of support services to other agencies on a
reimbursable basis. 

   The contract at issue here was awarded October 30, 2003, to nine
vendors--six of which, including PPDG, are large businesses, and three of
which are small businesses (one small business, one 8(a) small business,
and one HUBZone small business).  This contract replaced contract No.
TPD-99-C-0009, which was awarded on October 1, 1998, and expires in
October 2004.  PPDG is a vendor under both contracts, and task orders
first awarded under the 1998 contract are being transitioned to the 2003
contract.

   The 2003 contract contains a clause that governs which of the vendors will
be allowed to compete for which task orders.  Subsection (a) of the clause
is set forth below, with relevant portions underlined:

   G.14  COMPETITION OF TASK ORDERS AMONG CONTRACTORS

   a.  Since the Government may award multiple contracts, the following
procedures and selection criteria will be used to provide Contractors a
fair opportunity to be considered for each task order (FAR 16.505(b),
Ordering).  Each task proposal request will specify whether the task order
is being awarded based upon lowest price or a combination of price and
technical merit representing the best value to the Government.  FedSource
identified requirements will be competed among 8(a) and HUBZone
Contractors.  If no reasonable proposal can be awarded among this group,
then non-8(a)/HUBZone Contractors may compete. 

   When the Contractor solicits for and brings business to the FedSource for
task order request[s] under the terms of this Contract the following
procedures will apply:

   1) If the Contractor is an 8(a) or HUBZone business and the estimated
value of the requirement is less than $3 million, that Contractor will be
given the opportunity to negotiate a sole-source task order award, pending
a price reasonableness determination.   

   2) If the [C]ontractor is an 8(a) or HUBZone business and the estimated
requirement exceeds $3 million, competition among 8(a) and HUBZone
[C]ontractors will be conducted in accordance with G.10.

   3) If the Contractor is a non-8(a)/HUBZone business, competition among all
awarded Contractors will be conducted in accordance with G.10, unless
determination is made that [issuance of a task order on a basis other than
full and open competition is justified].   

   *Note:  Large business opportunity for this incentive will not exceed 25%
of the total value of orders awarded in the contract period/option year in
which task award is made.

   Contract No. TPD-04-C-0018, SA G.14 (emphasis added).

   PPDG learned in late August 2004 that several requirements it brought to
FedSource between 1998 and 2001, which resulted in the award of task
orders under the 1998 contract, were being awarded to the HUBZone small
business vendor without PPDG having an opportunity to compete for the
business.  This protest followed. 

   PPDG argues that the agency is not providing all vendors with a fair
opportunity to compete for orders, in violation of section G.14 of the
2003 contract.  Specifically, PPDG contends that under the terms of the
contract, a vendor was to be provided an opportunity to compete for any
business it brought to FedSource, regardless of whether the business was
initially brought under the 2003 contract, or under the contract awarded
in 1998.  In the agency's view, the clause above governs only new business
first brought to FedSource under the 2003 contract; the agency considers
business brought under the 1998 contract, and subsequently transitioned to
this contract (or reordered here), as FedSource-identified work.  Thus,
under the terms of the contract, the agency is limiting eligibility for
award of previously-identified work to the small business vendors.

   The agency seeks dismissal of this protest on the ground that challenges
to the proposed award of task orders under an
indefinite-delivery/indefinite-quantity (ID/IQ) contract are not
authorized by the Federal Acquisition Streamlining Act of 1994 (FASA),
SA 1004, Pub. L. No. 103-355, 108 Stat. 3243, 3252-53 (1994).  This
provision states 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. 

   41 U.S.C. SA 253j(d) (2000).  We have noted that the provisions of FASA
regarding task and delivery order contracts were intended to encourage the
use of multiple-award task order contracts, rather than single-award task
order contracts, in order to promote an ongoing competitive environment in
which each awardee is fairly considered for each order issued. 
Teledyne-Commodore, LLC-Recon., B-278408.4, Nov. 23, 1998, 98-2 CPD PA 121
at 3; Electro-Voice, Inc., B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD
PA 23 at 5.

   In this case, PPDG acknowledges FASA's restriction on protest review of
task or delivery orders, but argues that the agency here is not promoting
an ongoing competitive environment with its actions, as FASA intended. 
Instead, the protester contends the agency is conducting a partial
downselection, the result of which will be to exclude PPDG from future
opportunities to compete for business it brought to the 1998 contract.  In
this regard, PPDG contends that the situation here is analogous to those
we reviewed in Electro-Voice and Teledyne-Commodore.

   We disagree.  In Electro-Voice, the agency issued orders to two
contractors for the production and delivery of four product demonstration
models for further testing.  The results of the testing were to be used in
selecting which of the two contractors would receive all remaining orders
under the contract.  See Electro-Voice, Inc., supra, at 5.  Under these
circumstances, we concluded that the restriction on protests of delivery
orders contained in FASA did not bar our review of a protest of the
downselection decision.  Id.  Similarly, the facts in Teledyne-Commodore
led us to conclude that the agency was essentially conducting a single
source selection that would effectively bar the protester from competing
for any future task orders.  See Teledyne-Commodore, LLC-Recon., supra, at
4-5.

   Nothing of the sort is happening here.  This is not a situation where PPDG
will have no opportunity to compete for orders in the future, which was an
essential element of the two downselection decisions.  Rather, under the
terms of clause G.14, PPDG will be able to compete for any new business
brought to this contract by any of the six large business vendors.  In
fact, an inherent component of using a task order to make a downselection
is the opportunity to compete--albeit for the last time--for the work
covered by the overall multiple-award contract.  Here, PPDG gets no
opportunity to compete for what the agency now views as
FedSource-identified requirements.  Instead, PPDG--and all the large
business vendors--are excluded from eligibility for award by operation of
the contract, as they would be in any set-aside environment. 

   In our view, PPDG is complaining about a matter of contract
interpretation.  The terms of this contract apportion each task order to
one of two previously defined pools of vendors--either the small business
vendors, or all vendors--depending upon where the requirement originated. 
Put simply, when FedSource is responsible for generating a requirement,
the contract limits eligibility for award of a task order to the small
business vendors; when a vendor is responsible for the requirement, the
contract governs which vendor(s) among the entire range of vendors will be
eligible for the award, depending on the size of the order, and the size
status of the vendor that generated the requirement.  The only dispute
here is the agency's interpretation of the clause to mean that all
business identified under the 1998 contract will be viewed as
FedSource-identified business under this contract. 

   We also disagree with PPDG's contention that the situation here is
analogous to the situation we addressed in LBM, Inc., B-290682, Sept. 18,
2002, 2002 CPD PA 157.  In LBM, the protester argued that a task order
placed under a multiple-award ID/IQ contract had previously been set aside
exclusively for small businesses, and could not be transferred to the
multiple-award ID/IQ contract without regard to the Federal Acquisition
Regulation SA 19.502-2(b) requirements pertaining to small business
set-asides.  We concluded that the limitation on our bid protest
jurisdiction was not intended to preclude a protest raising a challenge to
the transfer and inclusion of work in ID/IQ contracts without complying
with applicable small business laws and regulations.  Id. at 4-5.

   An essential element of LBM, and of the cases it follows that reached
similar conclusions regarding the statutory limitation on our jurisdiction
to hear protests of task and delivery orders under multiple-award ID/IQ
contracts--N&N Travel & Tours, Inc. et al., B-285162.2, B-285162.3, Aug.
31, 2000, 2000 CPD PA 146 and Ocuto Blacktop & Paving Co., Inc.,
Ba**284165, Mar. 1, 2000, 2000 CPD PA 32--is that the protester did not
hold one of the ID/IQ contracts under the umbrella contract, and was
unable to reasonably foresee that work included in the challenged task or
delivery order would be purchased using the multiple-award contract.[2] 
PPDG elected to participate in this contract with full knowledge of the
fact that the contract included a scheme to apportion task orders among
vendors based on the source of the work.  PPDG is not arguing that these
task orders are being improperly placed under this contract, in violation
of the Small Business Act, or any other statute or regulation, as was the
case in LBM.  Rather, PPDG's argument is with the agency's apportionment
of task orders to small business vendors, or to all vendors, under the
terms of the contract.  These arguments provide no basis to conclude that
the limitation on our bid protest jurisdiction should not apply to this
situation.[3]

   The protest is dismissed.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The Government Management Reform Act of 1994, Pub. L. No. 103-356, 31
U.S.C. SA 501 note (2000), authorized the establishment of six franchise
fund pilot programs to provide common support services to federal agencies
on a reimbursable basis.  The Department of Treasury operates one of the
six franchise funds.

   [2] LBM, supra, at 6; N&N Travel, supra, at 6-7; and Ocuto, supra, at 5-6.

   [3] We note for the record that the statutory scheme for the
administration of task and delivery order contracts provides for a task
and delivery order ombudsman responsible for reviewing complaints from
contractors, and for ensuring that all of the contractors are afforded a
fair opportunity to be considered for task and delivery orders.  41 U.S.C.
SA 253j(e).  Under the statutory scheme for these contracts, the task and
delivery order ombudsman should be available to PPDG for review of this
issue.