Agency: Department of Health and Human Services
Disposition: Protest Dismissed
Decided: November 9, 2020
General Counsel P.C. Highlight:
GAO will dismiss a protest for lack of jurisdiction where the protester’s arguments reflect only its disagreement with the manner in which the agency evaluated the task order proposal and does not otherwise demonstrate that the task order is outside the scope of the underlying IDIQ contract.
Summary of Facts
The MayaTech Corporation protests the issuance of a task order to the National Opinion Research Center (NORC), under RFTOP No. 75P00120R00117, issued by the Department of Health and Human Services (HHS), for technical assistance and logistics support services. The RFTOP was issued on July 6, 2020 and sought professional resources to provide technical assistance and logistics support to the Office of Population Affairs.
The RFTOP contemplated the award of a single time-and-materials task order. Award was to be made on a best-value tradeoff basis, considering various technical evaluation factors. The original solicitation stated that the technical factors would be evaluated using a “point method” to assign a numerical rating of up to 100 points for technical proposals The solicitation was amended three times, once stating that the agency would evaluate the technical proposals using a color/adjectival coded rating scheme and then later deleting the adjectival rating scheme for the technical factors.
MayaTech was notified on October 1, 2020 that the task order was issued to NORC. MayaTech filed this protest.
Basis of Protest
MayaTech argues that HHS failed to provide MayaTech a fair opportunity to compete and unreasonably altered the scope of the underlying contract, because the selection decision was contrary to the base contract ordering clause and the RFTOP’s terms. HHS argues that the protester has not demonstrated that the task order at issue has increased the scope, period, or maximum value of the contract and should be dismissed for lack of jurisdiction.
GAO stated that under the Federal Acquisition and Streamlining Act of 1994, as modified by the National Defense Authorization Act for Fiscal Year 2017, GAO is only authorized to hear protests of task orders that are issued under multiple-award contracts established within civilian agencies (or protests of the solicitations for those task orders) where the task order is valued in excess of $10 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued. Task orders that are outside the scope of the underlying multiple-award contract are subject to the statutory requirement for full and open competition set forth in the Competition in Contracting Act.
GAO explained that when determining whether a task order is beyond the scope of the contract, GAO looks to whether there is “a material difference between the task order and that contract.” Evidence of a material difference is found by reviewing the circumstances attending the procurement that was conducted; examining any changes in the type of work, performance period, and costs between the contract as awarded and as modified by the task order; and considering whether the original contract solicitation adequately advised offerors of the potential for the type of task order issued. The overall question is “whether the task order is of a nature that potential offerors would reasonably have anticipated.”
GAO explained that MayaTech does not allege that the task order issued to NORC increased the scope of work of the underlying IDIQ contract. Instead, MayaTech argues that the way the agency conducted the task order competition resulted in an increase of the scope of the base IDIQ contract. GAO did not find this argument persuasive, finding MayaTech provided no support in the statutory text, legislative history, or prior decisions for its expansive reading of “scope.” GAO noted that based on MayaTech’s definition of “scope,” the task order protest bar would be meaningless since any departure from the task order solicitation or underlying contract would result in a task order that exceeds the scope of the contract. Additionally, GAO found that MayaTech failed to cite to a single decision in which GAO permitted a task order protest challenging flaws in the evaluation process to proceed under the “increases the scope” exception.
GAO concluded that because MayaTech’s protest “reflects only its disagreement with the manner in which the agency evaluated the task order proposals–which the exception to the task order protest bar does not encompass–our Office lacks jurisdiction to hear MayaTech’s protest.”
The GAO dismissed the protest on this basis.