B-298237.2, Doug Boyd Enterprises, LLC, August 6, 2007

B-298237.2 Aug 06, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights 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. View Decision 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.