Peter Vander Werff Construction, Inc.

B-415676 Feb 06, 2018 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Peter Vander Werff Construction, Inc. (PVWC), of El Cajon, California, protests the award of a subcontract by Lawrence Livermore National Security, LLC (LLNS) under solicitation No. B620862 for general construction and design-build construction services. PVWC challenges LLNS's decision not to award the protester a master task agreement. The Department of Energy, National Nuclear Security Agency (NNSA) requests that we dismiss the protest asserting that we lack jurisdiction over the protest. We dismiss the protest. View Decision DOCUMENT FOR PUBLIC RELEASE The decision issued on the date below was subject to a GAO Protective Order. This redacted version has been approved for public release. Decision Matter of:  Peter Vander Werff Construction, Inc. File:  B-415676 Date:  February 6, 2018 David S. Demian, Esq., Christopher R. Sillari, Esq., and Rishi S. Bhatt, Esq., Finch, Thornton & Baird, LLP, for the protester. Matthew Butsick, Esq., Department of Energy, for the agency. Robert T. Wu, Esq., and Peter H. Tran, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the decision of a prime contractor to award a subcontract is dismissed where the procurement was not by the government and the agency awarding the prime contract has not requested that subcontract protests be decided by our Office. DECISION Peter Vander Werff Construction, Inc. (PVWC), of El Cajon, California, protests the award of a subcontract by Lawrence Livermore National Security, LLC (LLNS) under solicitation No. B620862 for general construction and design-build construction services.  PVWC challenges LLNS’s decision not to award the protester a master task agreement.  The Department of Energy, National Nuclear Security Agency (NNSA) requests that we dismiss the protest asserting that we lack jurisdiction over the protest. We dismiss the protest. BACKGROUND LLNS is the prime contractor (under contract No. DE-AC52-07NA27344) for the management and operation (M&O) of NNSA’s Lawrence Livermore National Laboratory in Livermore, California.  Declaration of NNSA Contracting Officer at 1-2.  By the terms of the prime contract, LLNS has the authority to enter into subcontracts for goods and services necessary to the performance of its duties.  Consistent with Federal Acquisition Regulation (FAR) clause 52.244-5, LLNS is required to “select subcontractors (including suppliers) on a competitive basis to the maximum practical extent consistent with the objectives and requirements of the contract.”  FAR clause 52.244-5(a).  Furthermore, Department of Energy Acquisition Regulation (DEAR) clause 920.5244-1, (incorporated in the M&O prime contract), required LLNS to develop and implement a formal purchasing system plan.  Declaration of NNSA Contracting Officer at 1.  Consistent with the purchasing plan, LLNS had to obtain agency consent for award of any competitive, cost or fixed-price subcontracts with a value of $20 million or more.  Id. On March 22, 2017, LLNS issued a solicitation for the award of multiple master task agreements (MTAs) for general construction and design-build services.  Declaration of LLNS Contract Analyst at 1.  Of the 32 offers received, LLNS decided to award MTAs to 16 offerors, not including PVWC.  Id.  After receiving notice from LLNS that it did not receive an award, this protest followed.  Protest at 2-3. DISCUSSION PVWC challenges various aspects of its evaluation by LLNS.  See id. at 4-10.  The NNSA, however, requests that we dismiss the protest asserting that we lack jurisdiction to review the protest.  Since PVWC’s protest challenges the award of a subcontract by LLNS, and the procurement was not by the government, we conclude that the protest is not a matter that our Office will hear. The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA), 31 U.S.C. sections 3551-3556.  Our Office reviews alleged violations of procurement laws and regulations to ensure that the statutory requirements for full and open competition are met.  31 U.S.C. § 3552(a); Cybermedia Techs., Inc., B-405511.3, Sept. 22, 2011, 2011 CPD ¶ 180 at 2.  Under CICA, our Office has jurisdiction to resolve bid protests concerning the solicitations and contract awards that are issued “by a Federal agency.”  31 U.S.C. § 3551(1)(A).  Pursuant to our authority under CICA, we initially took jurisdiction over subcontract awards by prime contractors to the federal government where, as a result of the government’s involvement in the award process, or the contractual relationship between the prime contractor and the government, the subcontract, in effect, was awarded on behalf of--i.e., “by or for”--the government, and federal procurement laws and regulations otherwise would apply.  See, e.g., St. Mary’s Hosp. and Med. Ctr.