B-400390, Doug Boyd Enterprises, LLC, October 2, 2008
Decision
Matter of: Doug Boyd Enterprises, LLC
Douglas
M. Boyd, Doug Boyd Enterprises, LLC, 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
1.
Protest challenging an agency’s decision to cancel a task order
solicitation is denied where the agency had reasonable basis for its action.
2. Protester’s argument that decision to cancel a task order solicitation renders earlier orders placed by the agency a downselection is denied because there was a reasonable expectation at the time the earlier orders were placed that vendors would have a fair opportunity to compete for future orders.
DECISION
Doug Boyd Enterprises, LLC (DBE) protests the cancellation of task order proposal request (TOPR) No. HSFEHQ-06-R-SBMS, which was issued by the Department of Homeland Security, Federal Emergency Management Agency (FEMA) for the maintenance and deactivation of FEMA-supplied mobile homes. DBE is one of multiple vendors who were awarded indefinite-delivery/indefinite-quality (ID/IQ) contracts by FEMA. The protester contends that the cancellation of the TOPR was improper because the agency has extended the performance of the current task order, and thereby deprived vendors of a fair opportunity to compete for the agency’s requirements. The protester also contends that the cancellation of the solicitation warrants reconsideration of the dismissal of its earlier protest concerning the current task order.
BACKGROUND
On
DBE filed a protest on
On
FEMA issued a revised TOPR on
May 2, which stated that award would be based solely on price/cost. On June 5, Madison Services Corp., one of the
ID/IQ contract holders, filed a protest with our Office arguing that FEMA was
not providing it a fair opportunity to compete for the task order because the
solicitation did not consider past performance.
FEMA advised our Office on June 25 that the agency intended to take
corrective action by canceling the year 3 TOPR; based on the agency’s
corrective action, we dismissed the protest.
On July 10, FEMA cancelled the year 3 TOPR. On July 21, DBE filed this protest. The agency has advised offerors that it does
not intend to issue any new orders under the ID/IQ contract, and will instead
obtain its requirements through new contracts.[2] AR at 5.
DISCUSSION
DBE argues that the agency’s
cancellation of the year 3 TOPR was unreasonable. Additionally, the protester contends that the
cancellation of the year 3 TOPR demonstrates that the year 2 task order award
was a downselection, and that its
June 2007 protest of the issuance of that
order should not have been dismissed. As
discussed below, we find no merit in the protester’s arguments.
Cancellation of the Year 3 TOPR
and Extension of the Year 2 Task Order
DBE argues that FEMA’s cancellation
of the year 3 TOPR resulted in an improper extension of the year 2 task order. Specifically, DBA contends that the extension
of the year 2 task order denies the protester a fair opportunity to compete for
the agency’s requirements. FEMA contends
that it had a reasonable basis for canceling the solicitation and extending the
year 2 task order. We agree with the
agency.
A contracting agency need only
establish a reasonable basis to support a decision to cancel an RFQ. Deva & Assoc. PC, B-309972.3,
Here, FEMA concluded that cancellation
of the year 3 TOPR was warranted because the agency’s requirements had
changed. As discussed above, FEMA states
that it will not place new orders against the ID/IQ contract, and will instead
issue four new contracts to address the agency’s revised requirements. The agency states that the new contracts will
allow the government to address redefined requirements for the services, debundle
the requirements, reduce costs to the government, and to improve performance as
compared to the current overlapping contracts.
Contracting Officer (CO) Statement at 2.
On this record, we think the agency had a reasonable basis to cancel the
year 3 TOPR.
With regard to the extension of the year 2 task order, FEMA contends that it has the authority to extend the performance of the order under Federal Acquisition Regulation (FAR) sect. 37.111, which states that agencies may extend performance of recurring and continuing service requirements to address delays such as “bid protests and alleged mistakes in bid.”[3] The agency contends that the extension of the order was required because of the bid protests and ombudsman reviews concerning the year 3 TOPR evaluations and awards, and the time needed to solicit and award the new contracts through which the agency will obtain its revised requirements.
The protester does not dispute the agency’s authority to
extend the task order, but instead contends that the extension denied vendors
an opportunity to compete for the remaining requirements under the contract. See Protester’s Comments on AR,
at 2. The 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).
As discussed above, we think the agency had a reasonable
basis for the cancellation of the year 3 TOPR; we also think the extension of
the year 2 task order was reasonable under these circumstances. We therefore view the protester’s argument as
academic because there is no pending solicitation of a task order. In this regard, we do not consider academic
protests because to do so would serve no useful public policy purpose. Dyna-Air Eng’g Corp., B-278037,
Challenge to Year 2 TOPR Issuance as a Downselection
Next, DBE argues that the cancellation of the year 3 TOPR
demonstrates that the agency’s actions in June 2007 with regard to the year 2
task order constituted a “downselection,” and that, therefore, our Office
should not have dismissed the protester’s challenge to the year 2 task order
award. We find no merit in this argument.
As discussed above, DBE filed a protest challenging the
award of the year 2 task order on
In its earlier protest, DBE argued that the issuance of
the year 2 task order constituted a downselection because it would not receive
a fair opportunity to compete for the agency’s requirements for the duration of
that order. Our Office dismissed the
protest, concluding that the issuance of an order for one year of the contract
did not constitute a downselection, in light of the fact that the vendors would
have an opportunity to compete for the remaining years of the contract.[4] Doug Boyd Enters., supra, at 3-4. Specifically, we noted that even though DBE
would not receive any orders during the 6 to 12 month period of the year 2 task
order, it would be eligible to compete for any requirements remaining during
the remaining 36 to 42 months of the contract.
DBE now argues that because FEMA has cancelled the year 3 TOPR and stated that it does not intend to issue further orders under the contract, we should construe the year 2 task order as a downselection. We disagree.
The record here shows that, based on subsequent events, FEMA
concluded that the year 3 TOPR should be cancelled and that the agency’s needs
would be better met though a different procurement strategy. These facts do not provide a basis to
challenge the assumptions underlying our earlier decision, i.e., that at
the time the year 2 task orders were issued, the record indicated that vendors
would have an opportunity to compete for future task orders. The record here also does not support the
protester’s view that FEMA’s award of the year 2 task orders was part of an
intentional pattern to preclude vendors, such as DBE, from future opportunities
to compete for task orders.[5]
In sum, we find no merit to any of the protester’s
arguments concerning the cancellation of the year 3 TOPR. [6]
The protest is denied.
Gary L. Kepplinger
General Counsel
[1]
Section 843 of the National Defense Authorization Act for Fiscal Year 2008
amended GAO’s jurisdiction under 10 U.S.C. 2304c(e) and 41 U.S.C. 253j(e) to
authorize GAO to hear protests of the award or proposed award of certain task
and delivery orders under ID/IQ contracts.
Our Office now has jurisdiction to hear protests concerning orders
valued at more than $10,000,000 that were issued after
[2]
The agency issued four solicitations through which it
intends to obtain its requirements for the services covered by the ID/IQ
contract: HSFEMS-08-R-0038 for mobile
home deactivations; HSFEMS-08-R-0039 for maintenance services; HSFEMS-08-R-0040
for septic bladder pumping; and HSFEMS-08-R-0042 for travel trailer
deactivations.
[3]
The ID/IQ contracts awarded to DBE and the other contractors incorporated this
provision in the clause at FAR sect. 52.237-3.
[4]
As we noted in our earlier decision, the ID/IQ contract has a guaranteed
minimum of $50,000, which DBE has already received through prior orders. Doug Boyd Enters., supra, at
n.5.
[5]
To the extent that DBE contends that FEMA actions indicate a bad-faith intent
to preclude it from competing for task order awards, we find no basis for this
allegation. Government officials are
presumed to act in good faith, and a protester’s claim that contracting
officials were motivated by bias or bad faith must be supported by convincing
proof; we will not attribute unfair or prejudicial motives to procurement
officials on the basis of inference or supposition. Harris Enters., Inc., B- 311143,
[6]
In pursuing this protest, DBE raises several collateral issues. For example, the protester argues that the
agency’s evaluation of its past performance under the initial year 3 TOPR
competition was unreasonable. Because
the agency cancelled this solicitation, the protester’s argument concerning the
evaluation of DBE’s past performance is academic. See Dyna-Air Eng’g Corp., supra. We have reviewed all of the protester’s
arguments, and conclude that none provides a basis for sustaining the protest.