TITLE: B-298237.2, Doug Boyd Enterprises, LLC, August 6, 2007
BNUMBER: B-298237.2
DATE: August 6, 2007
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B-298237.2, Doug Boyd Enterprises, LLC, August 6, 2007

   Decision

   Matter of: Doug Boyd Enterprises, LLC

   File: B-298237.2

   Date: August 6, 2007

   Eric J. Marcotte, Esq., Krista L. Pages, Esq., Mark A. Smith, Esq., and
   Nathan C. Guerrero, Esq., Winston & Strawn LLP, for the protester.

   John A. Thompson, Esq., Federal Emergency Management Agency, for the
   agency.

   Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging the issuance of a task order under a multiple-award
   indefinite-delivery, indefinite-quantity contract is dismissed as the
   award of such task orders are not subject to GAO's bid protest
   jurisdiction, and the order here cannot be termed a "downselection."

   DECISION

   Doug Boyd Enterprises, LLC (DBE) protests the decision by the Federal
   Emergency Management Agency (FEMA) not to issue DBE a task order under
   multiple-award, indefinite-delivery/indefinite-quantity (ID/IQ) task order
   contract No. HSFEHQ-06-D-0431.

   We dismiss the protest.

   DBE is one of 10 small business contractors who were awarded ID/IQ
   contracts by FEMA in May 2006 for maintenance and deactivation of
   manufactured homes and travel trailers in the southern region of
   Mississippi. Each ID/IQ contract has a 5-year term, with a $50,000 minimum
   guaranteed value and a $100,000,000 maximum value. On March 7, 2007, FEMA
   issued a task order proposal request (TOPR) for the issuance of orders to
   vendors for the agency's "Year 2" maintenance and deactivation
   requirements under the ID/IQ contract. The TOPR anticipated issuance of
   task orders with a 6-month base term, and one 6-month option. DBE
   submitted a quotation in response to the TOPR, but was not selected for
   issuance of a task order by FEMA. Following the agency's notice that it
   was not selected, DBE filed this protest.

   The protest argues that FEMA improperly evaluated DBE's quotation in
   response to the TOPR under the price, past performance, and management
   evaluation factors, and did not conduct a reasonable source selection
   determination. The agency requests that we dismiss the protest because it
   concerns the issuance of a task order under a multiple-award ID/IQ
   contract, and is therefore not subject to our Office's jurisdiction.[1]

   The Federal Acquisition Streamlining Act of 1994 (FASA), 41 U.S.C. sect.
   253j(d), provides that protests may not be filed against the issuance or
   proposed issuance of orders under multiple-award task- or delivery-order
   contracts, except where it is alleged that the order increases the scope,
   period, or maximum value of the contract under which the order is issued.
   While DBE argues that the Year 2 order competition constituted a
   "downselection" of vendors for the work required under that task order,
   and therefore provides an exception to FASA's bar against protests of task
   or delivery orders, we do not agree.[2]

   Our decisions have held that a task or delivery order that precludes
   competition for future orders for the duration of the contract performance
   period may constitute a downselection, and that a protest may be filed
   against the issuance of such an order. See Electro-Voice, Inc., B-278319,
   B-278319.2, Jan. 15, 1998, 98-1 CPD para. 23 at 5-6; Palmetto GBA, LLC,
   B-299154, Dec. 19, 2006, 2006 CPD para. 200 at 3-4. Our view is based on
   the legislative history of FASA, which indicates that the provisions
   addressing task- and delivery-order contracts were intended to encourage
   the use of multiple-award, rather than single-award contracts, in order to
   promote an ongoing competitive environment in which each awardee would be
   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.103258,
   at 15-16 (1994), reprinted in 1994 U.S.C.C.A.N. 2561, 2575-76. In this
   regard, the Federal Acquisition Regulation (FAR) requires agencies to
   provide all awardees "fair opportunity to be considered for each order
   exceeding $3,000 issued under multiple delivery-order contracts or
   multiple task-order contracts." FAR sect. 16.505(b)(1)(i). Where an agency
   conducts a competition that essentially abandons the multiple-award,
   fair-consideration scheme envisioned under FASA in favor of selecting a
   single contractor for future orders under the ID/IQ contract, we will find
   that there has been a downselection and review a challenge to the
   resulting award.

   DBE raises two arguments that the competition for the Year 2 orders here
   constituted a downselection. First, DBE argues that the TOPR competition
   was a downselection because it denied the protester an opportunity to
   compete for work for the duration of the Year 2 task order. Second, DBE
   argues that it will suffer economic hardship if it cannot receive work
   from FEMA during the time covered by the Year 2 task order, and that our
   Office should expand its definition of downselections to consider such
   circumstances. For the reasons discussed below, we reject both of the
   protester's arguments.

   As to its first argument, DBE contends that the TOPR competition
   foreclosed the protester's opportunity to compete for work for at least
   the duration of the Year 2 order, and possibly for future orders as well.
   DBE argues that the TOPR performance work statement covers the full scope
   of the ID/IQ contract statement of work, and therefore it is likely that
   DBE will have no further opportunities to compete for work during the
   duration of those orders. DBE further contends that several statements
   made by FEMA regarding the Year 2 orders suggest that the agency intended
   to use the TOPR as a means to narrow, or "streamline," the number of
   vendors from whom the agency would obtain its future requirements under
   the ID/IQ contract.[3] Amend. Protest at 12-14. In this regard, the
   protester also argues that the agency has not affirmatively identified
   what work it may require after the Year 2 orders expire, thus leaving in
   doubt the potential future opportunities for vendors who did not receive
   Year 2 orders.

   Even assuming that DBE is correct in its characterization of the record,
   we think the facts here differ from those in the decisions in which our
   Office has found a downselection because the issuance of the Year 2 orders
   does not foreclose the ID/IQ contractors from the opportunity to compete
   for this work for the duration of the contract. See Electro-Voice, supra,
   Teledyne-Commodore, LLC--Recon., B-278408.4, Nov. 23, 1998, 98-2 CPD para.
   121 at 3-4. The ID/IQ contract here has a 5-year term, and the Year 2
   orders have a six-month base term and six-month option term. Thus, the
   Year 2 orders cover a maximum of 1 year, and FEMA will remain obligated to
   provide these vendors with a fair opportunity to compete for the agency's
   requirements after the instant orders expire. Put differently, once the
   Year 2 order expires after 6 or 12 months, FEMA will be required to give
   DBE a fair opportunity to compete for any requirements in the remaining 36
   to 42 months of the underlying ID/IQ contract.

   DBE's argument that the issuance of an order must be viewed as a
   downselection unless the agency identifies what future opportunities exist
   for orders under the ID/IQ contract misstates our decisions regarding
   downselections. Our decisions have characterized a competition as a
   downselection only where the terms of an order precludes vendors from a
   fair opportunity to compete for any and all future orders. Palmetto,
   supra, at 5 n.2. Our Office's decisions have not held that a downselection
   occurs merely because vendors will not have an opportunity to compete for
   a particular category of work for a period of time under the contract.[4]
   Palmetto, supra, at 5; The Intrados Group, B-280130, June 22, 1998, 98-1
   CPD para. 168 at 2-3; L-3 Commc'ns Co., B-295166, Dec. 10, 2004, 2004 CPD
   para. 245 at 2-3. Rather, our decisions have found downselections only
   where vendors' future opportunities to compete for orders are foreclosed
   for the duration of the underlying ID/IQ contract, for example where the
   successful vendor is expressly designated as the recipient of all future
   orders that might arise under the category of work competed, with no
   provision for the fair consideration of the other vendors for those future
   orders. Palmetto, supra, at 5.

   As to its second argument, DBE contends that even if the issuance of the
   Year 2 task order did not constitute a de jure downselection (as our
   decisions have defined them), it was nonetheless a de facto downselection
   by virtue of imposing economic hardship on the protester. In this regard,
   DBE argues that because it is a veteran-owned small business, it will be
   "put out of business" if it does not receive work from FEMA under the
   ID/IQ contract during the duration of the Year 2 order, and will therefore
   not have a fair opportunity to compete for future orders. Decl. of DBE
   Senior Vice President, at 5.

   Our Office's downselection exception to FASA's prohibition on task order
   protests is based on agencies' statutory obligation to provide vendors a
   fair opportunity to compete for task orders, and our understanding of the
   legislative intent behind that obligation. See Electro-Voice, supra. The
   protester cites no statutory or regulatory authority to support its
   contention that the statutory requirement for a fair opportunity to
   compete requires an agency to ensure that a vendor receives sufficient
   orders during the course of the ID/IQ contract term to maintain its
   financial-well being.[5] Nor does the protester cite any legislative
   history that would indicate that FASA intended to ensure the ongoing
   financial health of an ID/IQ contract vendor for the duration of the
   contract.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] The agency also argues that the protest should be dismissed as
   untimely and because it challenges matters of contract administration.
   Because, as discussed below, we dismiss the protest based on lack of
   jurisdiction, we need not address the agency's other arguments.

   [2] The protester does not challenge the issuance of the task order under
   the scope, period, or maximum value exception for our Office's
   jurisdiction.

   [3] DBE cites several other statements made by the agency that the
   protester contends evidences an intent to exclude vendors who did not
   receive a Year 2 order from receiving future orders. We have reviewed all
   of the arguments raised by DBE and find that none supports a conclusion
   that the Year 2 orders constituted a downselection.

   [4] The protester also argues that the competition for the Year 2 orders
   was a downselection because, DBE contends, the agency is not likely to
   issue any additional orders that would run concurrently with the disputed
   orders. In this regard, DBE argues that our decision in Palmetto relied on
   two considerations: (1) the limited period of time for the task order, and
   (2) the prospect for additional work being competed concurrently with the
   disputed task order. In Palmetto, we reiterated our Office's view that "a
   task or delivery order that precludes competition for future task or
   delivery orders for the duration of the contract performance period may
   constitute a downselection." Palmetto, supra, at 3. Although we found that
   both considerations cited above supported the conclusion that the issuance
   of the disputed task order was not a downselection, we did not articulate
   a new test or standard that requires the agency to demonstrate that it
   would conduct competitions for work to be performed concurrently with the
   disputed order. To the extent that DBE interprets our decision in Palmetto
   as requiring an agency to specifically demonstrate that there is the
   prospect of additional work to be competed concurrently with the disputed
   task order, the protester is incorrect.

   [5] As FEMA notes, the ID/IQ contract has a guaranteed minimum of $50,000,
   which DBE has already received through prior orders. Decl. of Contracting
   Officer (CO) at 2. All DBE was guaranteed upon award of the ID/IQ contract
   was that minimum amount and a fair opportunity to compete for orders. As
   discussed above, we conclude that the issuance of the task orders here do
   not preclude DBE from receiving a fair opportunity to compete for future
   orders under the ID/IQ contract.