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
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[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.