Link: GAO Opinion
Agency: Department of Homeland Security
Disposition: Protest dismissed.
Keywords: Terms of the Solicitation/Quotation; Task Order Protest
General Counsel P.C. Highlight: GAO has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000.
Qwest Government Services, Inc. protests the terms of an unnumbered request for quotations issued by the Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) for data center hosting services for USCIS’s Technology Engineering and Consolidation Center (TECC).
An order for the services will be issued to one of the three awardees under a General Services Administration indefinite-delivery/indefinite-quantity (ID/IQ) contract for telecommunications services. Qwest objects to language in the RFQ providing for the addition of approximately $14 million to the evaluated prices of contractors other than the incumbent service provider, Verizon, to take into account costs that the agency will incur if the services are provided in a new location.
Qwest argues that this price evaluation approach is fundamentally unfair and is a de facto sole-source award to the incumbent. GAO states that pursuant to 41 USC §4106(f)(1), it has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000, or it is alleged that the order increases the scope, period, or maximum value of the contract under which the order is placed. Qwest has not argued that the order here exceeds the scope, period, or maximum value of the underlying contract; rather, it maintains that GAO has jurisdiction over its protest because the value of the order in question is [more than $10 million].
As noted above, the RFQ provides for the addition of approximately $14 million to the evaluated price of any contractor proposing to provide the services in a new location. GAO has previously recognized that there are circumstances in which the successful contractor’s proposed price is not the sole determinant of the value of an order. In these cases, the operative inquiry concerns the value of the goods or services being provided, and for which the contractor is, in fact, being compensated, under the order. Here, the agency will not be compensating the contractor for the costs of acquiring and/or configuring equipment necessary for performance of the order. Rather, the government will bear these costs apart from the task order and the costs will be assessed to contractors solely for the purpose of evaluation in the task order competition. Since the costs do not reflect a value to be provided by the contractor under the order for which it will be compensated, the value of these costs cannot be considered for the purpose of invoking GAO’s task and delivery order protest jurisdiction. Because it is also apparent from the record that, unless the costs associated with the transition to a new location are included, the value of the order in question is less than $10 million, GAO concludes that it does not have jurisdiction over the protest. The protest is dismissed.