“DIGEST – Protest arguing that the agency improperly increased the scope of the underlying indefinite-delivery, indefinite-quantity (IDIQ) contract by failing to follow the evaluation criteria set forth in the request for task order proposals is dismissed because the Government Accountability Office does not have jurisdiction to review the matter; 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.”
“BACKGROUND – The RFTOP, issued on July 6, 2020, under HHS’s Program Support Center (PSC) multiple-award IDIQ contract, sought professional resources to provide technical assistance and logistics support to the Office of Population Affairs. Agency Req. for Dismissal, exh. 1, RFTOP at 1, 3. The RFTOP contemplated the award of a single time-and-materials task order with one 12-month base period and four 12-month option periods. Award was to be made on a best-value tradeoff basis, considering the following technical evaluation factors, listed in descending order of importance: personnel qualification and organizational capacity; technical approach; understanding the issues and scope of work; and section 508 compliance. Id. at 29, 49, 55-56. The solicitation advised that the non-price evaluation factors when combined where significantly more important than the price factor. Id. at 56.
As originally issued, the solicitation stated that, with the exception of the section 508 compliance evaluation factor (which would be evaluated on an acceptable/unacceptable basis), the technical factors would be evaluated using a “point method” to assign a numerical rating of up to 100 points for technical proposals. Id. at 56.
The solicitation was subsequently amended three times. In amendment 1, the agency provided the distribution of points to be assigned to each of the technical factors. Agency Req. for Dismissal, exh. 2, RFTOP amend. 1 at 2. In amendment 2, among other things, the agency provided details about each evaluation factor and also stated that the agency would evaluate the technical proposals using a color/adjectival coded rating scheme. Agency Req. for Dismissal, exh. 3, RFTOP amend. 2 at 5-8. Finally, in amendment 3, the agency deleted the adjectival rating scheme for the technical factors. Agency Req. for Dismissal, exh. 4, RFTOP amend. 3.
On October 1, 2020, MayaTech was notified that the task order was issued to NORC and that the value of the task order was $8,403,926. Protest at 8-9; Unsuccessful Offeror Award Notice. Following a written debriefing, MayaTech filed this protest with our Office.”
“DISCUSSION – MayaTech contends, among other things, that the agency failed to provide MayaTech a fair opportunity to compete because the selection decision was contrary to the base contract ordering clause and the RFTOP’s terms. According to the protester, the IDIQ contract’s ordering clause states that the issuance of any task order would be in accordance with section 16.505(b) of the Federal Acquisition Regulation, which, in MayaTech’s view, mandates that any award would be made based on the evaluation terms contained in the RFTOP. Protest at 10. MayaTech contends that the agency “materially changed the scope of the base multiple award IDIQ task order contract by removing the requirement in the [o]rdering [c]lause that [the agency] would award based on the RFTOP criteria.” Id. In this regard, the protester argues that had the agency followed the ordering clause and the RFTOP, MayaTech would have received a full 100 point score or close to it–making it higher rated than NORC–and would have received the award. Id. at 11. As a result, the protester maintains that the agency denied MayaTech a fair opportunity to compete and otherwise unreasonably altered the scope of the underlying IDIQ contract. Id. at 10.
Prior to the agency report due date, the agency requested that our Office dismiss MayaTech’s protest because the protest concerns the issuance of a task order valued under $10,000,000. The agency asserts the protester has not demonstrated that the task order at issue has increased the scope, period, or maximum value of the contract under which the task order was issued, and therefore, should be dismissed for lack of jurisdiction. Agency Req. for Dismissal at 1. The agency further argues that MayaTech’s arguments merely challenge an amendment to the RFTOP that changed the agency’s application of the evaluation criteria, which is not a sufficient basis to establish jurisdiction on the ground that the change increased the scope of the base contract. Id. at 2.
MayaTech responds that our Office has jurisdiction to hear the protest because according to the protester, the agency increased “the scope of the base contract” by making a task order award without regard to the base contract’s ordering clause. Resp. to Req. for Dismissal at 3. The protester also argues that the agency’s actions “effectively rewrote the base IDIQ contract” by removing a material requirement from the ordering clause “that task orders be awarded through fair opportunity to award and in accordance with the RFTOP criteria,” which offerors competing for the original base IDIQ contract could not have anticipated. Id. at 4. As a result, MayaTech contends that its “protest fits squarely within GAO’s jurisdiction where an agency increases the scope of an IDIQ contract through the agency’s conduct of a task order procurement.” Id. at 5…”
“DECISION – The MayaTech Corporation, of Silver Spring, Maryland, protests the issuance of a task order to the National Opinion Research Center (NORC), of Chicago, Illinois, under request for task order proposals (RFTOP) No. 75P00120R00117, issued by the Department of Health and Human Services (HHS), for technical assistance and logistics support services. MayaTech argues that the agency failed to provide it with a fair opportunity to compete and improperly increased the scope of the underlying indefinite-delivery, indefinite-quantity (IDIQ) contract.
We dismiss the protest for lack of jurisdiction.”
