CBCA 4671

GRANTED: June 16, 2015 CBCA 4671 ENTERPRISE INFORMATION SERVICES, INC., Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Respondent. Alexander J. Brittin of Brittin Law Group, P.L.L.C., McLean, VA, counsel for Appellant. Charles K. Bucknor, Jr., Office of the General Counsel, Department of Homeland Security, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), WALTERS, and LESTER. DANIELS, Board Judge. In this appeal, we are asked to interpret provisions of the contract awarded by the Department of Homeland Security (DHS) to Enterprise Information Services, Inc. (EIS) under the agency’s EAGLE II program. The question presented by the parties is whether the contract precludes a contractor like EIS, which is a prime contractor under the program, from performing as a subcontractor in a different functional category from the one in which it holds a prime contract. We agree with EIS that the contract does not preclude such performance. CBCA 4671 2 Findings of Fact Through the EAGLE program, DHS intends to create a “portfolio of broad scope, multiple award IT [information technology] support services contracts that are available throughout DHS.” Exhibit 2, Acquisition Plan at 8. (All exhibits are contained in the appeal file.) The contracts are of the indefinite delivery/indefinite quantity (IDIQ) variety. Id., Request for Proposals (RFP) at 91 (¶ L.3). The EAGLE II acquisition is the second generation of this program. Id., Acquisition Plan at 3. DHS issued its solicitation for proposals for EAGLE II contracts on November 1, 2010. The solicitation envisioned the award of contracts in three separate functional categories (FCs): FC1 (service delivery, including integration, software design/development, and operations and maintenance); FC2 (information technology program support services); and FC3 (independent verification and validation (IV & V)). Exhibit 2, cover letter at 1. DHS explained in the solicitation, “The scope of each individual IDIQ contract will be based upon the functional category for which the Contractor proposed and is selected with specific tasks to be set forth in the TOs [task orders].” Id., RFP at 10 (¶ C.1.2). DHS also told prospective offerors that “[t]here will be two award tracks: Small Business and Unrestricted.” Id., cover letter at 1. Almost two weeks before the solicitation was issued, a DHS contracting officer (CO), with the concurrence of other agency personnel, had penned a memorandum to an agency procurement official expressing concern about the potential for conflicts of interest among EAGLE II contractors. Exhibit 58. In this memorandum, the CO said that she had – determined that any firm awarded an EAGLE II contract would have a significant potential for organizational conflict of interest, if the same firm also performed work in multiple functional categories within the vehicle because its objectivity and impartiality would be impaired. Firms providing IT activities in more than one functional category would be in a position to influence the extent and nature of follow-on IT activities. Id. at 4. The memorandum recommended that the solicitation “clearly inform[] offerors via a provision that will specifically prohibit contractors, including team members and/or subcontractors in one functional category[,] from being eligible for award in this procurement in other functional categories.” Id. at 5. The solicitation contemplated the formation of teaming arrangements at the contract level. Teams could be composed of a prime contractor, up to four core team members, and subcontractors. Exhibit 2, RFP at 46-48 (¶¶ H.18, H.19). The solicitation defines the terms CBCA 4671 3 “prime contractor” and “core team.” “‘Prime Contractor’ as used within the EAGLE II teaming relationship means the principal member proposing for the team who will be responsible for performance of the contract, and who will be the Government’s single POC [point of contact] and representative for the team following award, including all TOs.” “A ‘Core Team’ is any combination of a Prime contractor, plus up to four (4) core team members submitting a proposal for an IDIQ award, and identifying themselves as a collective resource for contract performance.” Id. at 46 (¶ H.18).