Link: GAO Opinion
Agency: U.S. Army Materiel Command
Disposition: Protest dismissed.
GAO does not have jurisdiction to consider protest challenging agency’s decision to issue three separate delivery orders for body armor plates where each of the delivery orders is valued below the statutory threshold of $10 million, and the record does not support protester’s contention that agency’s decision to procure the plates by separate delivery orders was a pretext, that is, a deliberate effort to evade GAO’s bid protest jurisdiction.
General Counsel P.C. Highlight:
Armorworks argues that splitting the plates by size under three separate RFQs was irrational, and that the agency acted in violation of the Small Business Act because it failed to set aside any part of the requirement for small business concerns. GAO states that Government officials are presumed to act in good faith, and GAO will not aggregate separate task or delivery orders in connection with a multiple-award ID/IQ contract, for the purpose of establishing the $10 million jurisdictional threshold, absent a clear showing that the agency’s decision to issue separate orders was made solely to evade GAO’s protest jurisdiction.
The record does not support a finding that the agency’s decision to separately order its plates by size was a pretext as Armorworks suggests. Rather, the agency has explained that it divided the requirements into three separate orders according to size based on its understanding that contractors’ SAPI production lines are established for a particular size; issuing separate delivery orders for the SAPIs by size, the agency reasoned, would allow prospective contractors to focus on making only one size. This in turn would encourage more contractors to compete and thereby help ensure that all of the urgently needed items would be provided within the short 90-day timeframe for delivery. Given the agency’s rationale for separating the orders by plate size, GAO has no basis to conclude that the agency’s decision to issue three separate task orders was a pretext, that is, a deliberate effort to evade protest jurisdiction. Accordingly, because each RFQ is for a delivery order which is valued at less than $10 million, GAO does not have jurisdiction to hear Armorworks’ protest of the RFQs. The protest is dismissed.