Protest of the agency’s termination of a task order and award of a replacement task order is denied, where the replacement task order is valued at less than $10 million, and where the original task order, which was valued above $10 million, was not terminated but had lapsed during the pendency of a protest challenging the award.
AMAR Health IT LLC protested the National Institute of Health’s award of an IT services task order to Zolon Tech Inc., arguing that the agency effectively terminated its own task order and then awarded a new task order to Zolon based on an improper evaluation.
GAO dismissed the protest for lack of jurisdiction, because the task order award to Zolon fell below the $10 million jurisdictional threshold for consideration.
AMAR argued that its own task order was valued above that threshold, before the agency issued a stop work order in response to a protest filed by Zolon. The initial task order to AMAR was valued at nearly $14 million. After two rounds of corrective action, the agency awarded Zolon a task order valued at $6.3 million. AMAR argued that GAO had jurisdiction because its protest challenging the effective termination of its previously issued task order is entwined with the new task order issued to Zolon.
However, GAO explained that for the purposes of determining its jurisdiction, the value of the task order to Zolon is controlling since the terms of the order define the scope and terms of the contractual commitment between the contractor and the government.
GAO was not persuaded by the protester’s argument that its challenges were intertwined. GAO noted that the agency did not terminate the task order, nor is it required to, because the order lapsed during the pendency of the multiple corrective actions. To the extent the protester challenged the agency’s determination that its task order lapsed, GAO found that to be a matter of contract administration.
In supplemental comments, AMAR alternatively challenged the issuance of a sole-source order to Zolon. While the agency maintained the task order was issued under the original RFQ, GAO acknowledged that it could be considered a sole-source award to Zolon, as the solicitation would have expired along with AMAR’s task order. However, GAO found that challenge untimely, as it was filed more than 10 days after AMAR knew of its grounds for protest. According to GAO, this issue should have been apparent when AMAR learned of the agency’s determination that its task order expired and that, therefore, a termination was not necessary.
AMAR Health IT LLC is represented by Hal J. Perloff, David P. Hendel, and Steven A. Neeley, Jr. of Husch Blackwell LLP. Zolon Tech Inc. is represented by J. Patrick McMahon, William T. Welch, and Peter A. Fish of McMahon, Welch and Learned, PLLC. The government is represented by Christine F. Simpson, Department of Health and Human Services. GAO attorneys Katherine I. Riback and Amy B. Pereira participated in the preparation of the decision.