TITLE: B-400227, Systems Research and Applications Corporation, July 21, 2008
BNUMBER: B-400227
DATE: July 21, 2008
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B-400227, Systems Research and Applications Corporation, July 21, 2008

   Decision

   Matter of: Systems Research and Applications Corporation

   File: B-400227

   Date: July 21, 2008

   Thomas P. Humphrey, Esq., John E. McCarthy, Jr., Esq., Jon D. Levin, Esq.,
   and James G. Peyster, Esq., Crowell & Moring LLP, for the protester.
   James J. McCullough, Esq., Deneen J. Melander, Esq., and Steven A.
   Alerding, Esq., Fried, Frank, Harris, Shriver & Jacobson, LLP, for Science
   Applications International Corporation, an intervenor.

   Liana D. Henry, Esq., General Services Administration, for the agency.

   Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Where protest challenges the issuance of a task order that occurred prior
   to the effective date of the provision of the National Defense
   Authorization Act of Fiscal Year 2008 that provides statutory authority
   for this Office to review protests challenging task orders, the applicable
   provisions of the Federal Acquisition Streamlining Act of 1994 preclude
   this Office's consideration of the protest.

   DECISION

   Systems Research and Applications Corporation (SRA) protests the General
   Services Administration's (GSA) issuance of a task order to Science
   Applications International Corporation (SAIC) to provide various
   information technology (IT) services. SRA protests that SAIC has various
   conflicts of interest, that SRA and SAIC were not treated equally, that
   the agency misled SRA regarding its proposed cost/price, and that the
   agency misevaluated various aspects of SRA's proposal.

   GSA seeks dismissal of SRA's protest on the ground that protests
   challenging task orders that are issued pursuant to
   indefinite-delivery/indefinite-quantity (ID/IQ) contracts are precluded by
   the Federal Acquisition Streamlining Act of 1994 (FASA), 41 U.S.C. sect.
   253(j) (2008). In response, SRA argues that the protest is authorized by
   the recent enactment of section 843 of the National Defense Authorization
   Act of Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3,
   236-39 (2008).

   As discussed below, the record establishes that the task order at issue
   was awarded prior to the effective date of the NDAA; accordingly, the
   provisions of FASA control this matter, and we dismiss the protest for
   lack of jurisdiction.

   BACKGROUND

   Pursuant to FASA, a task order award may only be protested in certain
   limited situations. Specifically, FASA states:

     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.[[1]]

   41 U.S.C. sect. 253j(d) (2008).

   On January 28, 2008, the President signed the NDAA into law. Pub. L. No.
   110-181, 122 Stat. 3 (2008). Among other things, the NDAA amends FASA and
   authorizes this Office to consider protests in connection with the
   issuance of task orders in excess of $10 million, further providing that
   this Office's jurisdiction with regard to such protests "shall take effect
   on the date that is 120 days after the date of the enactment of this Act,
   and shall apply with respect to any task or delivery order awarded on or
   after such date."[2] Pub. L. 110-181, sect. 843(b)(2),(3), 122 Stat. 239.
   There is no dispute that May 27, 2008 was the 120^th day after enactment
   of the NDAA.

   The record shows that, in December 2007, GSA issued task order request
   (TOR) No. GSC-TFMG-08-31980 under GSA's Millennia Government Wide
   Acquisition Contract (GWAC),[3] seeking proposals to provide support for
   various U.S. Army information technology systems. As amended, the TOR
   required offerors to submit final proposals by April 21, 2008. SRA and
   SAIC each submitted timely final proposals.

   The record further shows that GSA's contracting officer made the requisite
   best value determination on Friday, May 23, 2008, selecting SAIC as the
   task order awardee. Declaration of GSA Contracting Officer, June 16, 2008,
   para. 5. In this regard, the contracting officer elaborates that, in the
   afternoon of May 23, he and the contract specialist began to enter the
   necessary award documentation into GSA's automated task order tracking and
   ordering system (TOS), that this process took approximately 8 hours to
   complete, and that he executed the GSA Form 300 "Order for Supplies and
   Services," shortly before 11 pm on May 23. Id. paras. 7, 8, exh. C. The
   record further establishes that, a few minutes thereafter, the contracting
   officer sent an email to SAIC personnel, notifying SAIC of the award, and
   that the task order was uploaded to the web-based TOS system in a manner
   permitting SAIC to log on to the TOS, access the task order documents, and
   download those documents to SAIC's computer equipment. Id. paras. 9,10;
   Declaration of GSA Senior Project Manager, June 25, 2008, paras. 7,
   7.1-7.5, 9. SAIC has submitted a declaration from its contracts manager
   verifying that the task order was downloaded and circulated via email to
   other SAIC employees late at night on May 23 and in the early morning
   hours of May 24. Declaration of SAIC Contracts Manager, June 25, 2008,
   para. 2, 3. Finally, the record shows that the documents GSA's contracting
   officer transmitted to SAIC via the TOS system on May 23, and which were
   thereafter downloaded by SAIC no later than May 24, included the GSA Form
   300, "Order for Supplies and Services," and the complete task order
   itself, which consists of over 200 pages, including the detailed statement
   of work, the cost/price schedule, the delivery/performance schedule, and
   contract administration data. Agency Response to Request for Production of
   Documents, Task Order No. GST008AJM087 (May 23, 2008).[4]

   On May 27, the agency notified SRA of the task order award. This protest
   followed. Based on the fact that the agency did not notify SRA of the task
   order award until May 27, the effective date of the NDAA, SRA maintains
   that its protest challenging the agency's task order award is authorized
   by the NDAA's amendment of FASA regarding protest jurisdiction. We
   disagree.

   DISCUSSION

   As noted above, FASA generally precludes this Office's consideration of
   protests challenging an agency's issuance of task orders under ID/IQ
   contracts when the task orders are issued prior to May 27, 2008. Further,
   here, the terms of the underlying Millennia GWAC specifically addresses
   the matter of when a task order is issued, stating: "A task order is
   issued when the Government transmits the task order to the contractor."
   Protester's Expedited Document Request, June 19, 2008, exh. 2.

   Based on the record discussed above, we conclude that the task order
   protested by SRA was awarded and transmitted to SAIC no later than May 24,
   2008--that is, prior to May 27, 2008, the effective date of NDAA.
   Accordingly, pursuant to the provisions of FASA, in effect prior to May
   27, this Office does not have jurisdiction to consider the protest.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] There is no dispute that SRA's protest does not raise any of the
   issues that would authorize consideration under FASA.

   [2] We note that FASA refers to the "issuance" of a task order, and the
   provision of the NDAA identifying the effective date of that Act refers to
   a task order "awarded" after a particular date. For purposes of this
   decision, we view the two terms as synonymous.

   [3] The Millennia GWAC consists of several ID/IQ contracts held by various
   contractors, including SRA and SAIC.

   [4] Although GSA Form 300 lists a total funded task order amount of only
   $5,710,866, section B of the task order itself lists a "GRAND TOTAL ALL
   CLINS" of $454,436,158, and provides for incremental funding of the task
   order, stating that additional funding will be made incrementally "up to
   the maximum of $454,436,158 over the performance period of this TO [task
   order]." Task Order No. GST0008AJM087 at B-13, B-14.