Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest denied.
Protest that agency improperly obtained items outside the scope of a multiple-award indefinite-delivery/indefinite-quantity contract is denied where the item is reasonably encompassed by the contract at issue.
General Counsel P.C. Highlight:
GAO denies the protest of Outdoor Venture Corporation, regarding the decision of the Department of the Army to obtain Ultra Lightweight Camouflage Net Systems (ULCANS) under a multiple award, indefinite-delivery/indefinite-quantity (ID/IQ) delivery order contract.
Outdoor Venture asserts that the products being procured, full concealment covers (FCCs), are outside the scope of the ID/IQ contract. GAO is authorized to review a protest of the issuance or proposed issuance of a task or delivery order which is valued below $10 million where, as here, the protester argues that the order is beyond the scope of the contract originally awarded. The fundamental issue in such a protest is whether issuance of the task or delivery order in effect circumvents the general statutory requirement under the Competition in Contracting Act of 1984 (CICA) that agencies obtain full and open competition through the use of competitive procedures when procuring their requirements. In determining whether a task or delivery order is outside the scope of the underlying contract, and thus falls within CICA’s competition requirement, GAO examines whether the order is materially different from the original contract. Evidence of a material difference is found by reviewing the circumstances of 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. Overall, the inquiry is whether the order is one which potential offerors would have reasonably anticipated.
The FCC clearly is consistent with the ULCANS mission, and it is an improved version of the current HMMWV turret cover, itself a ULCANS. The FCCs are made with the same specialized fabric that is essential to the manufacturing of ULCANS and that is available only from the two firms that hold the ID/IQ contract at issue. Given that the FCC performs the same mission for which ULCANS are intended–concealment of military equipment, is evolved from a current ULCANS, and is constructed of the material essential to ULCANS manufacturing, GAO finds that a potential offeror would reasonably have anticipated that the agency would procure it under the existing ID/IQ contract.
The protester argues that the ID/IQ contract’s performance/design specifications require that a ULCANS be comprised of a screen system and a support system, and because the FCC lacks a support system it cannot be an ULCANS. The intent of the portion of the specifications from which the protester quotes, system components, is to identify the necessary components of existing systems. The tables set forth the number and type of screen system and support system components, some of which were to be determined. In as much as the specifications seem designed to ensure that the manufacturer delivers all the necessary components to make particular ULCANS operational, and not to dictate the particular kind of support system a ULCANS utilizes, the protester’s reliance on so narrow a reading of the performance/design specifications is unreasonable. The protest is denied.