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Wednesday, March 17, 2010

Peering through the fog of war and procurement protests

Fog of war no reason to skirt contracting rules
The Army issued the task order solicitations under multiple-award indefinite-delivery/indefinite-quantity (IDIQ) contracts. However, DynCorp argued, and GAO agreed, the orders were outside of the scope of the IDIQ contract’s counter-narcoterrorism-related work.

“We recognize the Army’s position that it needs to swiftly award a contract for these services,” said Ralph White, GAO’s acting managing associate general counsel for procurement law. However the existing IDIQ contracts were limited to providing counter-narcoterrorism support services worldwide.

Alan Chvotkin, executive vice president and counsel for the Professional Services Council, said GAO’s decision tells agencies they must adhere to the rules of contracting over their desire for expediency.

“The decision is a clear statement from GAO that, notwithstanding important national and international priorities, the contracting rules still matter,” Chvotkin said.

In the Matter of: DynCorp International LLC, B-402349 March 15, 2010
The scope of work for the ID/IQ contracts was limited to providing the "necessary goods and services required by the [Counter Narcoterrorism Technology Program Office] to support the counter-narcoterrorism mission" of the above listed agencies, nations, and authorities in three "program performance areas": technology development and application; training, operations, and logistics support; and program and executive support.

The performance work statement indicated that although these services would be provided worldwide, the current "primary countries of interest" were Colombia and Afghanistan.

With regard to training and security services specifically, the performance work statement stated that the services would be "in support of counter-narcoterrorism missions and objectives."

The sample task orders were to: (1) develop high resolution short-wave infrared cameras for surveillance and reconnaissance aircraft; (2) provide intelligence surveillance and reconnaissance support in the Trans-Sahara region of Africa; and (3) train Afghan Border Police to perform functions necessary to deny the flow of illegal persons, drugs, and weapons across borders.

The first of the two task order requests at issue here seeks mentoring and training services for the Afghan Ministry of the Interior and Afghan National Police. The remaining mentors support Ministry of Interior operations or law enforcement activities generally.

Notably, none of the descriptions of the mentoring and training tasks describe or mention responsibilities directly related to counter-narcoterrorism.

The second of the two task order requests at issue here seeks facility maintenance and logistics support .

DynCorp, which does not hold an ID/IQ contract with the Counter Narcoterrorism Technology Program Office, protests that [the task orders] are outside the scope of the underlying ID/IQ contracts because the requested services are unrelated to counter-narcoterrorism. The Army asserts that the ID/IQ contracts are written broadly so as to include the services requested here.

our Office is authorized to hear protests of task orders that are issued under multiple-award contracts 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, absent a valid determination that the work is appropriate for procurement on a sole-source basis

The analysis of whether a task order is outside the scope of a multiple-award contract is the same as the analysis of whether a contract modification is outside the scope of a single-award contract.

In addition, the law in this area is well-settled. In determining whether a task order is beyond the scope of the contract, GAO and the courts look to whether there is a material difference between the task order and that contract.

Evidence of such 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 inquiry is whether the task order is of a nature that potential offerors would reasonably have anticipated.

DynCorp argues that the services requested by the TORPs at issue here are outside the scope of the underlying ID/IQ contracts, because the requested services are broader than and only indirectly related to the underlying contracts' counter-narcoterrorism efforts. In DynCorp's view, these TORPs involve support services for counter-insurgency and other efforts unrelated to counter-narcoterrorism

The Army admits that the Ministry of the Interior and Afghan National Police are primarily involved in counter-insurgency activities. However, according to the Army, there is a "nexus" between these counter-insurgency activities and counter-narcoterrorism "because in Afghanistan the insurgency is funded by drug trafficking" and therefore "any organization or ministry conducting counter[-] insurgency operations in Afghanistan necessarily is involved in countering illegal drug trafficking."

Based on our review of the record, we find that the underlying ID/IQ contracts do not contemplate providing the services requested by the TORPs here. Although the ID/IQ contracts were broadly written and included some training and logistics support, these contracts made clear that the activities had to be related to counter‑narcoterrorism operations.

The fact that there may be some small overlap in the services requested by the TORPs with those required under the ID/IQ contracts does not permit an agency to purchase other services under the ID/IQ contracts that were not reasonably contemplated when the ID/IQ contracts were issued.

Although the agency argues that the services sought by the TORPs are within the scope of the underlying ID/IQ contracts because the insurgency in Afghanistan is funded, at least in part, by money from drug trafficking, AR 34-38, our analysis is necessarily focused on the contract vehicles at issue here--i.e., the underlying ID/IQ contracts and the two TORPs for task orders the agency seeks to place against them. As noted above, the ID/IQ contracts do not include counter-insurgency activities and did not advise offerors that mentoring, training, facilities, and logistics support for counter-insurgency, general law enforcement, or the administration of the Ministry of the Interior or the Afghan National Police unrelated to counter-narcoterrorism operations could be provided. Instead, as discussed above, the ID/IQ contracts limited the training and support to activities that supported counter-narcoterrorism operations.

Finally, we find unpersuasive the agency's reliance on general statements in the TORPs and ID/IQ contracts to show that the TORPs are within the scope of the ID/IQ contracts. For example, we note that the "mission objective" for each of the TORPs generally states that the services sought "support the Warfighter in globally combating Narcoterrorism." We also acknowledge the presence of general statements in the ID/IQ contracts that indicate that the Counter Narcoterrorism Technology Program Office will acquire goods and services "that cross traditional Department of Defense acquisition and contracting scopes," cover a "full spectrum of support," and include "[s]upport for training, operations, and logistic[s] for military and civilian missions."

However, these statements must be read in the context of the solicitations as a whole. As noted above, the underlying ID/IQ contracts make clear that the services involved were to be provided in connection with counter-narcoterrorism operations, while the TORPs sought services that were much broader than counter-narcoterrorism and, therefore, are outside the scope of the ID/IQ contracts.

A contracting agency cannot extract isolated "catch all" words and phrases from a contract, or stretch the flexibility of that contract, in order to justify issuing a task order whose nature would not reasonably have been anticipated by potential offerors; to countenance such a justification would eviscerate the requirements of CICA.

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