B-400336, Morris Corporation, October 15, 2008
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
James
H. Roberts, III, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc Kelly PLLC,
for the protester.
Christine M. Choi, Esq., Department of the Army, 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
Protest that agency improperly determined that a task order for detainee food services could be issued under an existing indefinite-delivery/indefinite-quantity (ID/IQ) contract that expressly anticipated providing food services for Iraqi police and military forces is denied because the record shows that offerors could have reasonably anticipated during the original ID/IQ competition that feeding requirements, like those here, could be obtained through task orders issued against the resulting contracts.
DECISION
Morris Corporation protests the decision of the Department of the Army, Joint Contract Command-Iraq (JCC-I), to obtain detainee food services through a task order proposal request issued under multiple-award, indefinite-delivery/indefinite-quantity (ID/IQ) contract No. W91GYO-07-D-0017. Morris, which does not hold one of the ID/IQ contracts at issue in this procurement, argues that detainee food services do not fall within the scope of the ID/IQ contract. The protester also argues that by acquiring these services under the ID/IQ contract, the Army is effectively precluding Morris from competing for this work.[1]
The JCC-I is the contracting authority under which 15
individual contracting divisions or regional contracting centers administer
various contracting functions in
The ID/IQ contract contains two statements of work (SOW). One is for Iraqi training camp support services and the other, for coalition support services. SOW at 11-26, 27-40. The SOW for Iraqi training camp support describes the services to be performed as follows:
1.0. SCOPE OF WORK: The contractor shall provide all resources, personnel, equipment and management necessary to provide life support operations at Iraqi Police Training Sites or Iraqi Military Training Sites identified on each Task Order issued against this [ID/IQ] contract.
SOW at 13. The second SOW, coalition life support, provides:
20.0. SCOPE OF WORK: The contractor shall provide all resources, personnel, equipment and management necessary to provide life support operations at coalition bases identified on each Task Order issued against this [ID/IQ] contract.
In April 2008, JCC-I Theater-Wide Requirements (TWR) Division received a purchase request from the requiring activity for a contractor to provide food services for up to 5,000 detainees and 150 local nationals at the Theater Internment Facility Reconciliation Center (TIFRC) to be constructed at Camp Taji in Iraq[2]. Agency Report (AR) exh. 7, Requirements Package.
In preparing for this acquisition, the agency acknowledges
that it initially intended to acquire the required services as a single-award,
fixed-price contract. In connection with
that planned acquisition strategy, the agency published a presolicitation
notice on the Federal Business Opportunities (FedBizOpps) website advising
potential offerors of its requirements, and of its intent to issue a
solicitation. The anticipated
solicitation release date was
This review was followed by a second CO’s review (also at the requiring activity), who again compared the requirements for the detainee food services with the decentralized ordering guide and SOWs for the ID/IQ contract. At the end of this review, the activity again concluded that the detainee food services requirement was within the scope of, and could be satisfied under, the existing ID/IQ contracts. According to the second reviewer:
The TIFRC is located on a coalition base at Taji. An Iraqi Army facility is also located at that base . . . as is clearly stated in the second scope of work, the contractor is required to provide life support operations, and Dining Facility services are clearly a part of life-support services at coalition bases. Although detainees are not specifically mentioned, they are also not excluded . . . [a]s Coalition bases are set up to house many different nationalities and encompass many different missions, detainee feeding services are clearly within the scope of this contract.
CO’s Statement at 4. As further explained at the hearing, the CO was not concerned with “the specifics of who we were feeding” rather, she was focused on whether “all of the requirements that were in my statement of work could be met under [the ID/IQ contract].” Tr. at 125.
The CO for the requiring activity then submitted a written
request for a task order scope determination--and a request for authorization
to issue a task order request under the contract--to the CO administering the
ID/IQ contract. AR exh. 11, Email from
CO (
. . . after reviewing the [ID/IQ contract] and the Taji TIFRC draft statement of work, I determined that the requirements for food service operations, facilities and housing maintenance, demobilization/ decommissioning of equipment, anti-terrorism and force protection, a safety and health plan program, vector control, environmental protection, and deliverables were within the scope of the [ID/IQ contract] and use of the streamlined/ decentralized ordering tool was appropriate. Additionally, the expected value of the task order for the Taji TIFRC life support services falls within the maximum contract value limits set forth in Section B of the [ID/IQ] contract.
Declaration of the ID/IQ CO at 2 (
DISCUSSION
Morris argues that providing food services to detainees is outside the scope of the underlying ID/IQ contracts. Morris acknowledges, however, that the scope of work for the underlying contracts includes providing food services for Iraqi police, Iraqi military personnel and coalition forces at the same location. Protester’s Comments at 2. Nonetheless, Morris contends that extending these food services to detainees is materially different from the currently-provided food services because the nutritional requirements for feeding detainees are different, and because of differences in the command structure applicable to detainees. We disagree.
The Competition in Contracting Act (CICA) of 1984 requires
that agencies specify their needs and solicit offers in a manner designed to
achieve full and open competition, so that all responsible sources are
permitted to compete. 10 U.S.C.
sect. 2305(a)(1)(A)(i) (2000). When a
protester alleges that the issuance of a task or delivery order under a
multiple-award contract is beyond the scope of the contract, we analyze the
protest in essentially the same manner as those in which the protester argues that
a contract modification is outside the scope of the underlying contract. The fundamental issue is whether issuance of
the task or delivery order in effect circumvents the general statutory
requirement under CICA that agencies use competitive procedures when procuring
their requirements. Specialty Marine,
Inc., B-293871; B-293871.2,
In determining whether a task or delivery order is outside
the scope of the underlying contract, and thus falls within CICA’s competition
requirement, our Office examines whether the order is materially different from
the original contract, as reasonably interpreted. Evidence of a material difference is found by
reviewing the circumstances attending the original procurement; any changes in
the type of work, performance period, and costs between the contract as awarded
and the order as issued; and whether the original solicitation effectively
advised offerors of the potential for the type of orders issued. In other words, the inquiry is whether the
order is one which potential offerors would have reasonably anticipated. Symetrics Indus., Inc., B-289606,
In our view, the record in this case, particularly the scope determination analyses of both COs, quoted above, demonstrates that detainee food services are within the scope of the underlying contract. While the Army concedes that the ID/IQ contract does not make reference to either “detainees,” “detention centers” or “TIFRCs,” we find the absence of those terms does not mean that the detainee feeding requirements are outside the scope of the ID/IQ contract.
For instance, the record shows that the agency considered two detainee specific requirements that arguably might differ from the food services operations provided to Iraqi police/military personnel and coalition forces--the requirement to deliver meals to the detainees, and the requirement that local nationals are not permitted to serve detainee meals. The agency concluded that both requirements were within the scope of the ID/IQ contract. In this regard, the agency decided that the requirement to transport meals to the detainees was encompassed by paragraph 4.6 of the ID/IQ contract which requires the contractors to transport meals to locations designated by the CO or the CO’s representative. Similarly, the agency decided that the requirement prohibiting local nationals from serving food to detainees could be satisfied under paragraph 30.12 of the ID/IQ contract which specifically requires contractor employees serving, preparing and handling food, to be third country nationals. Tr. at 127-29. Thus, the agency found that every aspect of the requiring activity’s specific needs could be provided under the ID/IQ contract.
Nonetheless, the protester argues that the detainee-specific nutritional requirements and food portion sizes are distinguishable from the nutritional requirements and food portion sizes specified in the underlying ID/IQ contract. In our view, even if we assume for purposes of this argument that these differences are exactly as the protester contends, we do not think these differences support a conclusion that this order exceeds the scope of the underlying contracts.
For example, we recognize that the detainee-specific
nutritional requirements and food portion sizes are not listed in the
underlying ID/IQ contract. However, both
Finally, during the course of this protest, the parties
argued about the reasons Morris did not compete for one of the underlying ID/IQ
contracts here. We see no reason to
address this issue. Rather, the question
for our Office is whether the current task order is of a nature which potential
offerors would reasonably have anticipated.
See e.g., Anteon Corp., B-293523, B-293523.2,
As discussed above, there is a logical connection between the broad scope of food service operations delineated in the ID/IQ contract--the feeding of individuals housed within a specified Iraqi training camp and/or coalition base--and the food service operations required to feed detainees located within an Iraqi training camp and/or coalition base. Thus, we conclude that offerors could have reasonably anticipated during the original ID/IQ competition that feeding requirements, like those here, could be obtained through task orders issued against the existing ID/IQ contracts. Accordingly, we find that the record substantiates the agency’s determination that the detainee feeding requirements are within the scope of the existing ID/IQ contracts.
The protest is denied.
Gary L. Kepplinger
General Counsel
[1] Since 2006, Morris has been providing detainee food services in various Iraqi detention centers.
[2]
A coalition base and an Iraqi facility are both located at
[3] Our Office convened a hearing in this protest. The primary hearing witnesses were procurement officials from the Army and a representative from Morris.
[4] Among other things, the CO administering the ID/IQ contract reviews and approves requests from requiring activity COs to issue task orders under the ID/IQ contract. Declaration of ID/IQ CO; AR exh. 6, Ordering Guide, at 2.