Decision released in protest dismissal of Naval Sea Systems Command (NAVSEA) support services requirement

DIGEST

Protest that the agency unreasonably evaluated technical and price proposals is dismissed for lack of jurisdiction, where the dollar amount of the task order is below the threshold for GAO jurisdiction, notwithstanding that the agency’s evaluated cost for the awardee exceeded that threshold.

DISCUSSION

Under 10 U.S.C. § 3406(f)(1), GAO has jurisdiction to hear a protest of the issuance or proposed issuance of a task order by the Navy if one of two conditions are met:  first, if the protester alleges that the order increases the scope, period, or maximum value of the IDIQ contract under which the order was issued, or second, if the protester challenges an order “valued in excess” of $25,000,000.  Federal Acquisition Regulation (FAR) 16.505(a)(10)(i).  Our analysis below reflects our consideration of the second condition as the record contains no assertion that the protest meets the first.  See Response to Req. for Dismissal at 1-3.  The Navy requests dismissal of the protest, asserting that the value of the task order here is below $25,000,000 and that, consequently, GAO does not have jurisdiction to consider the protest.  In this regard, the Navy contends that “GAO has held that the appropriate measure for evaluating the value of the task order is the value of the task order as awarded, not the value alleged by the protester concerning what the task order value should have been.”  Req. for Dismissal at 2, citing Goldbelt Glacier Health Servs., LLC, B-410378, B-410378.2, Sept. 25, 2014, 2014 CPD ¶ 281 at 3.    The Navy relies, in part, on our reconsideration decision in Goldbelt Glacier Health Servs., LLC, to support its request for dismissal.  In that decision, we stated that “where an order has in fact been issued by the government, we view the jurisdictional limit to turn on the value of the disputed order, which is reflected in the terms of the order itself since the order defines the scope and terms of the contractual commitment between the selected contractor and the government.”  Goldbelt Glacier Health Servs., LLC–Recon., B-410378.3, Feb. 6, 2015, 2015 CPD ¶ 75 at 2, citing Goldbelt Glacier Health Servs., LLC, supra at 2.  This is the case, the Navy argues, even when the contemplated task order contains cost-reimbursable contract line item numbers (CLINs).  Req. for Dismissal at 2, citing Erickson Helicopters, Inc., B-415176.3, B-415176.5, Dec. 11, 2017, 2017 CPD ¶ 378 at 9-10; Basic Eng’g Concepts & Tech., Inc.–Recon., B-409231.4, Feb. 6, 2015, 2015 CPD ¶ 74 at 6.    The Navy also contends that value of the task order should be based on the actual contract award amount rather than the evaluated price where the task order includes NAVSEA clause B-232-H006 Limitation of Cost or Limitation of Funds Clarification, which incorporates FAR clause 52.232-20.  Req. for Dismissal at 2, citing encl. 2, Task Order Contract at 10.  Under FAR clause 52.232-20, Limitation of Cost, the agency argues, the government is not obligated to reimburse the contractor for costs incurred in excess of the amount listed in the contract.  Req. for Dismissal at 2-3; see Basic Eng’g Concepts & Techs., Inc.-Recon., supra at 6 (finding no basis to reconsider our previous determination that the limitation of costs or funds language in the awarded order is relevant to determining the “value” of the order for jurisdictional purposes)…

DECISION

ELS, Inc., of Washington, DC, protests the issuance of a task order to Green Expert Technology Inc. (GreenXT), of Haddonfield, New Jersey, under request for proposals (RFP) No. N00164-22-R-3023, issued by the Department of the Navy, Naval Sea Systems Command (NAVSEA), for support services.  ELS, the incumbent contractor, challenges the reasonableness of the Navy’s evaluation of technical and price proposals and asserts that the agency conducted a flawed best-value tradeoff analysis.  We dismiss the protest.

See the decision here.

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