B-400321; B-400402, Delex Systems, Inc., August 5, 2008

B-400321; B-400402, Delex Systems, Inc., August 5, 2008 TITLE: B-400321; B-400402, Delex Systems, Inc., August 5, 2008 BNUMBER: B-400321; B-400402 DATE: August 5, 2008 ******************************************************* B-400321; B-400402, Delex Systems, Inc., August 5, 2008 Decision Matter of: Delex Systems, Inc. File: B-400321; B-400402 Date: August 5, 2008 Pamela J. Mazza, Esq., and Isaias Alba, IV, Esq., PilieroMazza PLLC, for the protester. Duncan Butts, Esq., and Julie Griffiths, Esq., Department of the Navy, for the agency. Paula A. Williams, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Government Accountability Office does not have jurisdiction over protests challenging the proposed issuance of delivery orders under a multiple-award indefinite-delivery, indefinite-quantity contract where the delivery orders are valued at less than $10 million. DECISION Delex Systems, Inc. protests the terms of two solicitations for delivery orders issued by the Department of the Navy, Naval Air Systems Command to holders of an existing indefinite-delivery, indefinite-quantity (ID/IQ) contract. The first solicitation, request for proposals (RFP) No. N61339-08-R-0032 (RFP 0032), is for the revision and maintenance of the Naval Strike Air Warfare Center training program curriculum; the second solicitation, RFP No. N61339-08-R-0033 (RFP 0033), is for the revision and maintenance of training curricula for the Tidewater Naval Aviation Training Systems.[1] Delex, a small business concern, and an awardee under the existing ID/IQ contract, argues that these solicitations should have been set-aside for a competition limited to small businesses holding the ID/IQ contract. We dismiss the protests. BACKGROUND Prior to the issuance of the solicitations at issue here, on August 15, 2003, the agency awarded ID/IQ contracts to four small businesses, including Delex, and three large businesses to supply the agency's Training Systems Contract II (TSC II), Lot II requirements.[2] The base ordering period under the TSC II, Lot II ID/IQ contract is 8 years and the agency reserved the right to compete future delivery orders among the small business ID/IQ contract holders. As amended, each of the protested solicitations provides for the issuance of cost-plus-fixed-fee (CPFF) delivery orders. The record shows that the anticipated orders under RFP 0032 have a total value of $2,654,568, and the orders under RFP 0033 have a total value of $9,099,422. Agency Request for Dismissal, attach. 2, RFP 0032, amend. 3; attach. 3, RFP 0033, amend. 3. Both RFPs advised offerors that proposals exceeding the stated total value for each solicitation would be eliminated from the competition. Id. The Navy requests dismissal of these protests because challenges to the proposed issuance of delivery orders under a multiple-award ID/IQ contract valued under $10 million are precluded by section 843 of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 237 (2008) (to be codified at 10 U.S.C. sect. 2304c(e)). In contrast, Delex argues that our Office has jurisdiction because the protests are not, in Delex's view, challenging the proposed issuance of the orders, but are instead challenging the "removal of the task orders from the small business set-aside component of the [c]ontract" without regard to the requirements of Federal Acquisition Regulation (FAR) sect. 19.502-2(b).[3] Protester's Initial Response at 2 (July 9, 2008). According to the protester, in view of our decision in LBM, Inc., B-290682, Sept. 18, 2002, 2002 CPD para. 157, and cases cited therein, our Office has jurisdiction over this issue despite the acknowledged statutory bar to our jurisdiction when task or delivery orders are valued under $10 million. Id.; Protester's Supplemental Response (July 14, 2008). DISCUSSION This analysis necessarily begins with the language of the NDAA. Specifically, it states: (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for-- (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. 10 U.S.C. sect. 2304c(e)(1).