Simultaneous Award of IDIQ Contract and Task Order Does Not Trigger FASA Bar and Does Not Preclude Judicial Review of IDIQ Award; PAE-Parsons Global Logistics v. United States, COFC Nos. 19-1205, 19-1515

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Protest challenging the award of IDIQ contracts is denied. The government argued that the court should dismiss the protest for lack of jurisdiction. The agency had simultaneously awarded IDIQ contracts and resulting task orders. The government alleged the protester was thus effectively protesting the award of a task order, which was barred by FASA. The court, however, found that the government was conflating the IDIQ contracts with task orders. FASA clearly makes a distinction between a contract for a task order—i.e., an IDIQ—and a task order. The court had jurisdiction to hear a protest of the IDIQ award. The protester challenged the evaluation of its proposal, arguing that the agency had erred in assigning a Good rating to its technical approach and assessing a de facto significant weakness to its labor staffing matrix. The court found these arguments groundless.

The Army issued a solicitation seeking logistics support services for the various Geographic Combatant Commands­—e.g., NORTHCOM, CENTCOM, PACOM etc.—and Afghanistan. The solicitation contemplated the award of four to six IDIQ contracts to cover the each of the Combatant Commands. Simultaneous with each IDIQ contract, the Army planned to issue immediate task orders to each IDIQ awardee.

The Army awarded IDIQ contracts to Fluor International, PAE Parsons, Vectrus Systems Corporation, and Kellogg Brown and Root. Although PAE received one of the IDIQs, it believed it should have received more. PAE filed two protests challenging (1) the award of the AFRICOM IDIQ to Fluor, and (2) the award of the PACOM IDIQ. PAE asserted various arguments concerning the evaluation of its proposal. The court consolidated the protests. Fluor and Vectrus intervened. All the parties moved for judgment on the administrative record.

The government contended the court lacked jurisdiction because PAE’s protest was barred by Federal Acquisition Streamlining Act (FASA). Under FASA, a protest in connection with the issuance of a task or delivery order is not justified. Because the Army had issued task orders under each IDIQ, the government argued, the court lacked authority to hear the protest.

But the court found that the government was conflating the award of the IDIQ contract with award of the task orders. To be sure, the Army had awarded task orders in conjunction with the IDIQ awards. This, however did not negate the court’s ability to hear a challenge to the IDIQ awards. The court noted that the language in 10 U.S.C. § 2304c(e)—the FASA bar—focuses on task orders as opposed to task order contracts. The court reasoned that if it were to permit an agency to avoid judicial review by linking IDIQ awards and task order, it would violate the distinction between task order contract and task order awards. Indeed, accepting the government’s argument would create a loophole in which an agency could award IDIQ contracts that were judicially impregnable.

In addition, the government argued the court lacked jurisdiction because PAE did not have standing to protest. As an awardee, the government claimed, PAE was not adversely impacted by the award and thus not an interested party to maintain a protest.

The court rejected this argument, reasoning that status as a contract awardee does not, by itself, deprive the court of jurisdiction. The court reasoned that the nature of the procurement resulted in four concurrently awarded, but very different, IDIQ contracts. Each of these awards was separate and distinct. Thus, each awardee’s resulting IDIQ contract was different from any other offeror’s award such that each offeror, regardless of whether they were awarded an IDIQ, had a demonstrable economic interest affected by the award of the other IDIQs.

As to the merits of the protest, PAE argued that the Army deviated from the technical evaluation criteria by assigning its technical approach an elevated risk despite not explicitly assigning it any weaknesses. PAE asserted that but for this “moderate risk” assessment, its proposal would have received an Outstanding rating under the technical factor, putting it on equal footing with Fluor and Vectrus for the AFRICOM and PACOM awards.

In analyzing whether the Army’s award decision should be set aside, the court looked to whether the Army had sufficiently explained its reasoning in making awards. The court found that it had. The evaluators had expressed concern with PAE’s technical approach because the company had made subjective adjustments to performance factors that would limit its ability to control costs and ensure costs were traceable to execution.

PAE contended that because it technical approach only received a Good rating, the Army must have necessarily assessed a significant weakness that inflated the risk rating from Low to Moderate. The court, however, noted that the solicitation’s definition of a Good rating encompassed a Low to Moderate risk. Thus, an offeror that was determined to be low-risk could still receive a Good rating if its proposal aligned with the Good descriptors. In light of this, the court could not find the Army’s evaluation was arbitrary or capricious.

Next, PAE argued that it should have received a strength for the traceability of its proposed labor staffing matrix and that the failure to assign a strength amounted to the assessment of a de facto significant weakness. The court, reasoned that the absence of a strength does not constitute a de facto weakness.

PAE further contended that the Army should have conducted discussions concerning the traceability to of the company’s labor staffing matrix. But agencies are not required to raise every issue that must be addressed to improve an offeror’s proposal. Here, the Army did not assess PAE a weakness or deficiency for its staffing matrix. Accordingly, the Army was not required to raise any issues relating to the matrix during discussions.

Finally, PAE argued that in making the award decision, the SSA placed too much weight on offerors labor staffing matrices. But the court found that the SSA clearly explained her reasons for making the awards and exercised her independent judgment in awarding AFRICOM to Fluor and PACOM to Vectrus.

PAE is represented by Anuj Vohra of Crowell & Moring LLP. Intervenor Fluor is represented by Andrew Emil Shipley of Wilmer Cutler et al. Intervenor Vectrus is represented by Kevin Mullen of Morrison Foerster, LLP. The government is represented by Robert Ralph Keipura of the U.S. Department of Justice.

COFC - PAE Parsons