Hospital Klean, Inc., B-286791, December 8, 2000

B-286791 Dec 08, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest that contracting agency improperly proposes to issue a task order under an indefinite-delivery/indefinite-quantity contract is dismissed pursuant to 10 U.S.C. Which provides 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. Or maximum value of the contract under which the order is issued. Hospital Klean contends that the agency intends improperly to issue the task order on a sole-source basis and that the requirement should have been set aside under the Small Business Administration's (SBA) section 8(a) program. The contract awarded to BMAR states that it is to provide operation and maintenance or minor repairs and replacement services to government medical facilities. View Decision Matter of: Hospital Klean, Inc. File: B-286791 Date: December 8, 2000 DIGEST Attorneys DECISION Hospital Klean, Inc. protests the proposed issuance of a task order to BMAR & Associates, Inc. by the United States Army Corps of Engineers, Huntsville Center, Alabama, for hospital housekeeping services at the Womack Army Medical Center, Fort Bragg, North Carolina. The Army states that it proposes to issue the task order under an indefinite-delivery/indefinite-quantity (ID/IQ) contract (No. DACA87-00-D-0004) that it awarded to BMAR on April 26, 2000. Hospital Klean contends that the agency intends improperly to issue the task order on a sole-source basis and that the requirement should have been set aside under the Small Business Administration's (SBA) section 8(a) program. We dismiss the protest. The contract awarded to BMAR states that it is to provide operation and maintenance or minor repairs and replacement services to government medical facilities, and specifically provides that it is an "[ID/IQ contract], as defined in [Federal Acquisition Regulation] FAR Sec. 16.504," and that the agency intends to issue task orders (fixed price, time and materials, or a combination of both types) for the required services. Agency Request for Summary Dismissal, exh. 1, Contract Sec. B, Para. 6, at 3. The statement of work (SOW) specifically enumerates all of the services that could be obtained, as follows: The services provided shall include those both inside and outside the facilities including grounds, Hospital Aseptic Management Systems (HAMS) Service, and custodial services. . . .Custodial services will include general housekeeping, trash collection and removal. Id. Sec. C Para. 1.1, at 7. As the Army notes, 10 U.S.C. Sec. 2304c(d) (1994) provides 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." The Army argues that the statute precludes our consideration of the protest because the protest does not raise any of the enumerated statutory exceptions. The protester disagrees with the agency's position, arguing that it "supplemented its protest to specifically challenge award under the contract . . . as being outside the intended scope of that contract, and a violation of FAR Sec. 19.502.2." Protester's Comments, Nov. 29, 2000, at 3. According to Hospital Klean, therefore, our Office is not precluded from considering the protest. Hospital Klean also maintains that the requirement should have been set aside under the SBA's section 8(a) program. According to Hospital Klean, this contention is properly for consideration by our Office at this juncture. As a preliminary matter, we think that the protester's contention that the requirement should have been set aside for 8(a) concerns is untimely. We further conclude that 10 U.S.C. Sec. 2304c(d) precludes our considering Hospital Klean's challenge to the proposed issuance of the task order to BMAR. Below we discuss our conclusions in greater detail. Untimely Allegation On November 20, subsequent to filing its initial protest letter, Hospital Klean supplemented its protest to argue that the requirement should have been set aside exclusively for small businesses under the SBA's section 8(a) program. Although Hospital Klean couched this allegation in terms of a challenge to the issuance of the proposed task order, it is essentially a challenge to the terms of the underlying solicitation that resulted in the award of the ID/IQ contract to BMAR. In this connection, the Army explains, and the record shows, that the underlying solicitation clearly placed Hospital Klean on notice that the agency intended to obtain housekeeping services under the contemplated ID/IQ contract.