Indefinite Delivery/Indefinite Quantity Contracting Practices (2015)

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93 Construction, Maintenance, and Other IDIQ Contracts—Legal Case Studies The search for case law in construction, maintenance, non-design professional services, and supply IDIQs yielded 72 cases from the 22 different agencies shown in Table 4, chapter two. It should be noted that some federal agencies’ mission includes delivering construction and whose staff includes engineers and architects. Others rely on other agencies, usually the General Services Administration (GSA), to deliver their facilities. There is also a differentiation between agencies that can perform major construction projects and those that are restricted to minor projects. An example is the U.S. Army Corps of Engineers, which is authorized to deliver the full range of civil and military construction projects, and the U.S. Army Director of Public Works, which is restricted to minor construction only. Table C1 contains a synopsis of the cases reviewed to produce the information contained in this section. Of the total of 76 cases, 41 were directly related to the construction, maintenance, and/or management of facilities. The remaining 35 dealt with various aspects of public agency procurement that are topically related to IDIQ contracting and where the decision could be applied in principle to a facility-related IDIQ contract. An example is a claim for a professional services contract to furnish child care services where the dispute entailed the evaluation of the professional credentials of key personnel, a task done in A/E QBS IDIQs. Another example would be a supply contract that requires the vendor to design and install a particular piece of equipment which is akin to a DB IDIQ contract for a facility. TABLE C1 SYNOPSIS OF IDIQ CASE INCLUDED IN THE CONTENT ANALYSIS IDIQ Type Construction Maintenance Services Supplies Single Award Multiple Award 19 10 36 11 50 26 Federal Adjudicating Authority U.S. Court of Appeals, Federal Circuit U.S. Court of Federal Claims U.S. District Court Comptroller General of the United States 18 37 14 7 Decision Basis of Claim Breach of Contract Award Fatally Flawed Violation of Competition in Contracting Act Other Sustained Denied Other 22 41 5 8 22 51 3 Prevailing Party Agency Prime Contractor Prime Over Its Subcontractor Subcontractor Over Its Prime 52 16 4 4 The statistics displayed in Table C1 show that roughly one-third of federal IDIQ contracts are multiple award IDIQs where a pool of contractors compete for each individual work order. This is in response to the Federal Acquisition Streamlining Act of 1994 (FASA), which explicitly encourages multiple award contracts to maximize competition after award (Thornton 2002). It also shows that the majority of the claims were settled in favor of the agency indicating that the federal IDIQ contract form is in most cases defensible. Thus, a state DOT wishing to implement IDIQ contracting would do well to use the federal form as its starting point and then tailor it to the state’s statutes. It is notable that only five of the claims in the sample were over the agency’s limiting competition on the post-award work orders. While not shown in the table, all five claims were denied, and among the five, the claims were heard by three of the four federal adjudicating authorities. This leads one to infer that the full and open competition that occurs in the pre-award phase is viewed by industry as sufficient. The majority (41 of 76) were protests over the award system used to select the winner. Nearly a quarter of those protests (10) can be classified as “sour grapes” or Appendix C idiQ Case Law Analysis

94 “sore loser” cases where the court ruled that the published RFP evaluation plan was fair, equitable and the award was made in accordance with the published plan. Additionally, 8 of 10 of those claims challenged the agency’s evaluation of the party’s qualifications. The remaining two entailed a claim when the agency canceled the solicitation when all the bids were out of the money and one where the low bidder challenged an award to the high bidder as best value. The content analysis showed that the following three areas are particularly sensitive to protests and claims in IDIQ contracts: Development and execution of evaluation plans. • • • Breach of contract due to failing to request minimums specified in the contract, large changes in the as- built quantities versus the as-bid quantities, and the agency procuring services similar to those in the IDIQ contract from other contractors or using its internal staff. IDIQ prime contractor changing subcontractors after award of the contract. IDIQ Proposal Evaluation The contractor prevailed in ten protests of IDIQ evaluation and award cases. Those that were found against the agency can be classified into two groups: those where the agency failed to follow its published evaluation plan and those where the agency failed to conduct a proper procurement by making a mistake or inadvertently giving one competitor an advantage. The first group contains protests that are perhaps the easiest to avoid. The agency must train its evaluation panel in exactly how to apply the evaluation plan to each proposal in a consistent and transparent manner (Shane et al. 2010). In Afghan American Army Services Corporation vs US (2009), the contractor alleged that the agency failed to include information provided regarding personnel licensing and certifications. The agency termed the contractor’s information as “vague” and assigned a “weakness” rating for that factor, despite the fact that the contractor had submitted the information when requested by the agency. The Court found that: “Because the agency has provided no supporting documentation to explain the scores it assigned, this Court cannot determine whether the agency… took into account the amplified information on past performance and had a rational basis [for its rating]. As such, the Court sustains this ground of protest.” (Afghan American Army Services Corporation vs US 2009). Thus, it found to be important that the agency collect the necessary documentation during evaluation to be able to justify the ratings assigned each competitor if a protest arises. This conclusion is further reinforced in Wackenhut Services, Inc. vs US (2008) stating: “In this case, the court has determined that the SEB violated the APA by failing to create a record to explain and justify the [deleted] increase in point score, or [deleted]% increase, between the SEB's Preliminary and Final Findings. The agency must examine the relevant data and articulate a satisfactory explanation for its action and the choice made . . . In reviewing that explanation, we must consider whether the decision . . . was based on a consideration of the relevant factors and whether there has been a clear error of judgment” (Wackenhut Services, Inc. vs US 2008). Breach of Contract The content analysis reviewed 22 cases where breach of contract was alleged by the claimant. The claim was decided in favor of the contractor in only 8 of the cases. Two of the cases involved changes in the quantity of services ordered by the agency. In Dynamics Corporation of America v. US (1986), the agency was pleasantly surprised at the prices quoted by the winning contractor and, as a result, sought to make the most of the opportunity by ordering more than the quantity that was in the expected annual amount stated in the RFP. In this case, the variation in quantities was sufficient enough to cause the Federal Court of Claims to direct the agency to reimburse the contractor for the difference in value between the expected and actual amounts of the items in question. In Gardiner, Kamya & Associates, PC vs. Jackson (Secretary of Housing and Urban Development) (2004), the Federal Court of Appeals reversed a court of claims ruling in favor of the agency and remanded it for further consideration. The basis of the decision was the failure of the agency to negotiate in good faith, taking the stance that since it had

95 issued two work orders after the base contract period was over and the extension period had not been formally concluded that no contract was in effect and it did not have a duty to negotiate. The court disagreed, stating: “The contract provided that work requirements, delivery schedule, funding arrangements, and travel requirements for each task order would be negotiated separately. Since the contract minimum had already been met, HUD had the right to forgo new task orders and to seek a new contractor, and GKA could decline future orders. Nevertheless, the parties entered into Modification 2 for Task Orders 13 and 14. HUD thereby received a substantial benefit because the timing of the next omnibus contract was a concern, and it preferred not to have a lapse in performance… We differ from the board, however, in that we conclude the agreement to enter into Modification 2 provided sufficient consideration to reprice Task Orders 13 and 14 after the audit was conducted, both prospectively and retroactively… So long as GKA insisted that a retroactive price adjustment was a condition of the extension, HUD could not have forced GKA to enter into a new task order, agree to an extension of an old order, or provide services solely on HUD's terms. GKA's promise to perform the tasks under Modification 2, when it was not so obligated, was sufficient consideration for HUD's return promise to retroactively and prospectively reprice Task Orders 13 and 14” (Gardiner, Kamya & Associates, PC. vs. Jackson 2004) . Unfoldment, Inc. v. District of Columbia Contract Appeals Board (2006) was a case where the agency sought to terminate the IDIQ contract, arguing that it contained no minimum ordering quantity by citing: “Article XIV of the contract provides: This is an Indefinite Quantity Contract with Fixed Unit Pricing and a maximum contract ceiling amount, with payments based on the documented delivery of the specified units of service.” However, the RFP provided both minimum and maximum quantities for “planning purposes only.” The court sided with the contractor citing a District of Columbia procurement regulation (27 DCMR § 2103) that was incorporated by reference which stated: “The use of District indefinite quantity contracts shall be mandatory to the extent of the minimums stated in those contracts.” The unusual aspect of this case was that it also contained the standard FAR termination for convenience clause upon which the agency also relied in its decision to terminate before fulfilling the minimum quantity of services. The court went on to find: “It is clear from these documents, which are incorporated into and made part of the contract, that the contract stated a minimum placement requirement, that CFSA was bound to pay Unfoldment at least for that minimum, and that CFSA should have obligated the amount of budget authority needed to cover the minimum placement requirement. Failure to pay the minimum during the initial one-year period of the contract constitutes a breach of Unfoldment's contract” (Unfoldment, Inc. v. District of Columbia Contract Appeals Board 2006). Thus, this decision shows that the FAR termination for convenience clause does not cover every possible situation. In this case, the agency was seeking to terminate an IDIQ contract under which it had placed several work orders for which notice to proceed had not been given. Thus, the contractor had a right to rely on the agency’s promise of payment since it had already obligated itself to rent the necessary space to perform the work orders, the agency was not able to terminate for convenience at no cost to itself. The second breach situation in which the courts sided with the contractor involved the agency procuring similar goods or services from a source other than the IDIQ contractor. In Ronald A. Torncello and Soledad Enterprises, Inc. vs. US (1982), the US Court of Claims decision was significant enough to be cited in future claims as authority and is called the Torncello doctrine. The case came from a Navy IDIQ for base maintenance and repair services. The gist of the case involved furnishing “pest control work” which was comprehensive in the types of pests covered in the contract and for which Soledad bid $500 per call. After award, the Navy found it only required “gopher control” and was able to procure that from an unsuccessful bidder on the same IDIQ for $35 per call. In considering the contractor’s appeal to a decision made by the Armed Services Board of Contract Appeals (ASBCA), the US Court of Appeals wrote: “[The] plaintiff's complaint is serious that the effect of the ASBCA’s constructive use of termination for convenience has been to allow the government to walk away from all of its contractual obligations. We note as one of the most elementary propositions of contract law that a party may not reserve to itself a

96 method of unlimited exculpation without rendering its promises illusory and the contract void, and we question if the government's termination for convenience clause should be construed that broadly… Here we have a putative or constructive termination only, and the court will not suppose such a termination as exonerating defendant from all its commitments, if the act would be an abuse of discretion” (Ronald A. Torncello and Soledad Enterprises, Inc. vs. US 1982). The doctrine articulated in this much cited case essentially states that the limits to the federal termination clause end when the agency uses it to renege on a promise by issuing a work order but not the notice to proceed. The phrases in italics above express the idea that if the agency could abandon an IDIQ contractor without having fulfilled its promise to order a minimum quantity it would render the entire contract void and the agency guilty of abuse. IDIQ Prime/Subcontractor Issues The final legal issue found during the analysis of the federal IDIQ contract case law, dealt not with the relationship between the agency and its prime contractor, but rather with the obligations and responsibilities of the prime and its subcontractors to each other. In the case of Glynn v. Impact Science & Technology, Inc. (2011), the plaintiff was a subcontractor for a prime that held an IDIQ to supply electronic devices to the military. During the course of the contract, Glynn changed the design of a specific component causing its cost to rise above the amount contained in the IDIQ pricing agreement. Because of this, the prime contractor stopped ordering from Glynn and found another source of the component. Before going further, the reader should know that this claim was rife with unsupported allegations from both parties. Further complicating this situation was the fact the Glynn was actually an employee of the prime contractor at the outset of the IDIQ contract. The ultimate decision has nothing to do with the extraneous issues that obfuscate the fundamental contractual question: Can an IDIQ prime contractor change subcontractors after award if the actions of the one included in the original contract subcontracting plan cause the actual cost to perform that subcontractor’s scope of work to increase? The United States District Court in Maryland heard this case. The prime contractor Impact Science & Technology, Inc. (IST) alleged that it lost business because of Glynn’s actions, which caused the Navy to cease issuing work orders beyond the first one. The court disagreed and found for the subcontractor stating: “…the record provides at least two other explanations for the lack of follow-on orders that are equally plausible, if not more so. First, the IDIQ contract was, by definition, a contract for an indefinite quantity of … units. The mention of 10,000 … systems was a reference to the IDIQ contract's maximum possible limit, not an actual order. Thus, there was never any guarantee that NAVSEA would place an order for any more units beyond the initial 1,100. Second, IST had to replace the [old] module of the 1,100 units covered by NAVSEA's initial order with the newer module, causing a delay in their delivery… and this dissatisfaction [over the delay] could very well be the reason that NAVSEA declined to place additional orders” (Glynn v. Impact Science & Technology, Inc. 2011). A second case, Control Solutions LLC v. Oshkosh Corporation (2012), over the same issue went the other way. Control Solutions (CS) was a supplier of powered doors to Oshkosh who held an IDIQ contract to furnish equipment to the military. CS manufactured and furnished four specialty doors to Oshkosh for use in the proposal for this contract. Oshkosh paid CS for those doors and won the contract. The relationship between the prime and the sub deteriorated after award with the prime eventually completing the contract by procuring specialty doors from another source. CS cited the doctrine of promissory estoppel in its claim and alleged that an oral contract to supply doors if the prime won the contract was formed. It then relied on the promise of future work to its detriment. The court cited the definition of promissory estoppel in its ruling: “To establish a claim, the plaintiff must prove that (1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiff 's reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment” (Control Solutions LLC v. Oshkosh Corporation 2012).

97 It went on to state that this “…claim fails… [because there] is no written evidence of an "unambiguous promise" to use CS as the supplier for any and all units Oshkosh requires.” Therefore the court found for the prime IDIQ contractor explicitly stating that CS had been fully compensated for the four doors and that the prime was under no obligation to continue the relationship after award. The lesson to be learned for agencies from these two cases revolves around the principles of promissory estoppel. In an IDIQ contract, the agency can find itself liable for the same reasons. For example, an agency engineer who indicates to the IDIQ contractor that future work orders are in the pipeline could create a situation where promissory estoppel would apply if the contractor acted on the promised and ordered materials for the future work order to avoid any delays in the logistics process. Training for agency personnel who will become involved with IDIQ contracts is necessary to ensure that they are both aware of and sensitive to the difference between a work order and a stand-alone design, construction or maintenance contract. Professional Services IDIQ Contracts—Legal Case Studies IDIQ has been used by the transportation industry at the federal and state level to procure professional services for at least a couple of decades. On the federal-aid projects, the use of IDIQ contracts is acceptable under certain conditions as long as the consultant selection is based on open competition and demonstrated competence and qualifications in accordance with 23 CFR Part 172 (FHWA 2012). As discussed in chapter one, design IDIQs come with a variety of names. Some of the more common are “general engineering consultant” (GEC) and “on-call,” “master,” or “term” agreements in which the agency is not obligated to order, nor is the consultant obligated to furnish, any amount of engineering services until it is required though the issuance of a work order. Design contracts are typically formed under the auspices of a state “mini-Brooks Act,” which requires that the award be made solely on a basis of qualification and past performance, which is termed “Qualification-based Selection” (QBS) (ACEC 2010). This creates a contractual environment where the consultant is reluctant to instigate a claim for fear that it will negatively impact its competiveness for future projects, a phenomena called by one author the “Poison-the-Well Syndrome” (Koch et al. 2010). As a result, the record did not provide the broad wealth of case law found in the construction, maintenance and supply IDIQ areas. Thus, the design IDIQ cases were selected based on their content to be presented as examples illustrating common legal decisions rather than analyzed by content analysis. The four selected examples are summarized in chapter two. Exelis Systems v. US Background: While not a classic A/E professional services contract, this case provides an excellent example of what is considered during a bid protest on a design IDIQ and how an agency can mitigate the potential for a protest by developing a QBS evaluation plan. In this case, Pacific Architects and Engineers (PAE) was the incumbent IDIQ contractor and mobilized in the various locations required in the RFP. Substance of the Dispute: The evaluation plan contained two work orders that the agency intended to issue after the contract was awarded. One was for Baghdad Embassy Compound (BEC), which represented a typical work order that was anticipated during the life of the IDIQ contract. The second was a proposal for the program management office itself. Exelis’ principal arguments relate to the agency’s evaluation of the competitors’ responses to the BEC sample task. The major issue cited was the agency’s evaluation of the firms’ proposed staffing mix and level of effort in response to the sample task. The adjectival ratings for each competitor are shown in Table C2. TABLE C2 EVALUATION OF EXELIS AND PAE IDIQ PROPOSALS Evaluation Factor Exelis PAE 1. Overall Approach to IDIQ and Program Management Excellent Excellent 2. Baghdad Embassy Compound Sample Task Proposal Satisfactory Excellent 2a. Staffing Plan Marginal Excellent 2b. Key Personnel Satisfactory Excellent 2c. O&M Plan Satisfactory Excellent 2d. Sample Quality Control Plan Excellent Excellent 2e. Preliminary Transition Plan Satisfactory Excellent

98 3. Technical Proficiency Excellent Excellent 4. Program Management Office Task Order Proposal Excellent Excellent 4a. PMO Key Personnel Excellent Excellent 4b. Sample Program Management Plan Excellent Excellent 4c. Sample Cost Control Plan Excellent Satisfactory 5. Past Performance and Experience Confidence Significant Confidence 6. Price $[Deleted] $[higher than Exelis] Table C2 shows that with the exception of Exelis’ rating for the BEC sample work order, the competitors were fairly evenly matched. The agency’s justification for Exelis’ marginal rating in the BEC staffing plan was rooted in the fact that its plan did not appear to have appropriate types of personnel with the requisite qualifications and experience assigned to three specific areas: power generation, heating, ventilation and air conditions, and vehicle maintenance. Exelis claimed that PAE’s rating was flawed because its staffing plan showed a satisfactory level of staff in the first year, but decreased below that level in the four optional extension years. Finally, the difference in the ratings assigned for the past performance and experience evaluation factor, while both satisfactory, was attributed to Exelis’ record that showed it had received an unsatisfactory rating on a previous federal contract as well as a “cure notice” (a warning that the government intended to terminate a contract for default if corrections are not immediately made) for a current contract. Decision and Summary: The Comptroller General denied all of Excelis’ claims except for the one pertaining to the evaluation of PAE’s staffing plan. The record reads: “We sustain the protest for the limited reason discussed above relating to the agency’s misevaluation of PAE’s proposed staffing plan. As noted, the record shows that the PAE proposal includes a substantial reduction in the proposed level of effort during the later years of the contract without any explanation of how PAE will perform what essentially amounts to constant requirements; correspondingly, the evaluation record is silent regarding how the agency’s evaluators viewed PAE’s progressive reduction in its proposed level of effort” (Comp. Gen. B-40711.5, 2013). The decision goes on to award Excelis with reimbursement of the costs of pursuing the portion of the claim regarding the apparent misevaluation of PAE’s staffing plan. It also recommends that the agency “either: (1) evaluate the PAE proposal as it currently is written and make assessments that address the fact that PAE has proposed a progressive, substantial reduction in the level of effort over the life of the contract; or (2) reopen the competition, obtain revised proposals, evaluate those revised proposals and make a new source selection decision” (Comp. Gen. B-40711.5, 2013). This case illustrates the issues inherent to evaluating the qualifications and past performance found in a QBS award system. Although the award was not purely QBS, price was not the issue of contention. Experience has shown that it is difficult for incumbents with a satisfactory record of performance to be unseated. One author puts it like this: “Experienced contractors also know that bidding opportunities for a reoccurring contract are inherently biased toward the incumbent contractor” (White 2011). This advantage occurs for two fundamental reasons: 1. Since the incumbent is already on site and has been performing the desired services for the agency, it understands the risk profile and is typically able to submit a lower proposed price than other competitors. (White 2011). 2. The evaluation board typically contains agency members with personal knowledge of the incumbent’s performance and if that perception is positive, those panel members are able to assign a higher level of confidence in the incumbent’s ability to successfully complete the contract than for those competitors whose performance must be gauged purely from the proposal process itself (White 2011). This issue is important to the synthesis because in many cases the agency is exposed to protest risk through accusations of favoritism. In an A/E contract, the QBS award process is inherently subjective, regardless of how numerically sophisticated the evaluation plan’s scoring system appears to be. In the Exelis case, the design services were incidental to the rest of the scope of work. Thus, the award was based on best value and both reasons favoring the incumbent were applicable.

99 Taking the Comptroller General’s decision plus PAE’s incumbency and the rating of Significant Confidence leads one to infer that the reason the evaluation panel may have overlooked the staffing levels for the option years is due to their familiarity with the incumbent. This leads one to conclude that when an IDIQ is a reprocurement of an active IDIQ contract that has reached its term that the agency might consider cautioning its evaluators against using personal experience rather than the information contained in the proposals as the basis for their rating. It must be noted that this issue cuts both ways if the incumbent has had performance issues during the current contract. IMS Engineers—Architects, P.C. v. US. 1995 Background: On 5 August 1994, USACE’s Omaha District awarded an IDIQ contract for consulting services at “Miscellaneous Military and Civil Hazardous, Toxic, and Radioactive Waste Sites” to IMS Engineers - Architects, P.C. (IMS). The Small Business Administration (SBA) certified IMS as a socially and economically disadvantaged 8(a) business. The contract was for a term of one year with four option years. The minimum amount of services that could be ordered was $2,500 and the maximum amount of services, including the four option years, was $10,000,000. The contract required that at least 50 percent of the contract value be self-performed by IMS. It also contained the following FAR clause germane to this case: FAR 52.249-7 TERMINATION (FIXED-PRICE ARCHITECT-ENGINEER) (APR 1984): “(a) The Government may terminate this contract . . . for the Government’s convenience or because of the failure of the Contractor to fulfill the contract obligations. . . . (b) If the termination is for the convenience of the Government, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services.” After completing two work orders (called delivery orders in the case), an RFP for a third work order to complete a treatability study at an abandoned gas station at March Air Force Base (AFB), California was sent to IMS. The director of public works at March AFB expressed concern as to whether IMS was qualified to satisfactorily perform the study and suggested that a prominent national firm (large business) be given the study under another open IDIQ contract held by USACE. Subsequently, IMS submitted a proposal that showed that the named national firm would perform 85% of the value of the work order under consideration. This was rejected by the agency as it violated the IDIQ contract’s minimum 50% self-performance by the 8(a) contractor requirement. Substance of the Dispute: At this point, price negotiations broke down and after four months the agency moved the study to another open IDIQ contract with a second prominent national consulting firm to complete the study by the original deadline. In doing so, the consultant revised the testing plan to utilize less expensive technologies as a means to accelerate and finish on schedule. Additionally the agency invoked the termination for convenience clause, canceling the work order request with IMS and terminating the remainder of the optional extensions. It requested that IMS submit a proposal for costs associated with the unconsummated work order, and IMS declined to do so stating since no work had been done no reimbursement was due. IMS reacted by accusing the agency of racial discrimination and promulgated a breach of contract claim on the basis that the contract was improperly terminated and that the agency had an obligation to exercise all the optional extensions in the contract. Decision and Summary: The AFBCA denied IMS’s appeal of the contracting officer’s decision on the following basis: “…the termination for convenience clause grants the contracting officer broad authority to terminate. This authority has been described as follows: In no other area of contract law has one party been given such complete authority to escape from contractual obligations. This clause gives the Government the broad right to terminate without cause…” There are two valuable points that come from this case. First, it affirms the right of the agency to terminate an IDIQ contract without cause for convenience of the federal government. Thus, it is important that the agency not abuse this power and use it arbitrarily. Secondly, the case demonstrates that by including optional extensions to the IDIQ contracts the agency is in no way required to exercise them.

100 Lucent Technologies World Services Inc. v. US Background: Lucent was awarded a Multiple Award Task Order Contract (MATOC) as the design-build contractor to the Army’s Iraq Reconstruction Communication Sector contract. The contract requires “complete design-build services and procurement for communications design, construction, demolition, and rehabilitation services” (Comp. Gen. B-295462, 2005). As part of that contract, Lucent was asked to prepare conceptual designs and a cost/benefit analysis for potential technologies that would “allow the earliest delivery of a fully functioning nationwide integrated, secure, network.” The agency decided to implement Lucent’s recommendations for a particular technology, and a subsequent work order to procure the hardware was issued and Lucent announced its intention to compete for the work order for the given system. Substance of the Dispute: The contracting officer determined that since Lucent had prepared the technical details of the work order RFP and had interacted with at least one of the potential vendors that it had an organizational conflict of interest (OCI) and prohibited it from being awarded that particular work order. The following FAR provision was cited: “If a contractor prepares and furnishes complete specifications covering nondevelopmental items, to be used in a competitive acquisition, that contractor shall not be allowed to furnish these items, either as a prime contractor or as a subcontractor, for a reasonable period of time including, at least, the duration of the initial production contract” (FAR § 9.505-2(a)(1)). Lucent protested the award arguing that the particular FAR clause only applies to “complete specifications” and that was not the case in this procurement. It also argued that the agency failed to consider whether or not the apparent conflict actually gave Lucent an unfair advantage, claiming that in fact it did not. Decision and Summary: The Comptroller General denied Lucent’s protest in its entirety based on the same FAR authority that was cited by the contracting officer in the original decision as follows: It considered “Lucent to have an OCI because of the advantage conferred by preparation of the TETRA device specifications and the resulting knowledge of those specifications prior to the issuance of the RFP… because they furnished the specifications. And it’s very clear that they’re not allowed to furnish the specifications and then turn around and furnish the items” (Comp. Gen. B-295462, 2005). This case demonstrates an important point regarding IDIQ design contracts, particularly when they are multiple award DB IDIQs where a pool of contractors will compete for each work order. The point is that winning one work order can create the basis for recusing the winner from competing on a subsequent work order due to the potential conflict of interest. In a typical single project DB contract, the A/E who prepared the preliminary design that is included in the DB RFP is excluded from competing as a member of the DB team to build the project (Liao 2013). While this constraint may not exist in fact in state procurement statutes, the appearance of a conflict of interest can damage an agency’s reputation and is best avoided (King and Patterson 2005). On federal-aid DB projects, FHWA’s regulatory policy precludes consultants and/or sub-consultants who assist the owner in the preparation of the RFP document from participating on joining a DB team; however, a contracting agency may determine there is not an organizational conflict of interest in certain situations (OFR 2007). McKissack-URS Partners, JV v. US Background: McKissack-URS Partners, JV (McKissack) submitted a statement of qualifications to be considered for a Department of Labor A/E contract to furnish architect and engineering design and construction management support services. It was found to be qualified and made the short list, and as part of the process, it was asked to make a presentation to the agency. Another firm was found to be the “most-preferred” firm. Shortly thereafter McKissack was informed that a contract had been successfully negotiated and would be awarded to the other firm. Substance of the Dispute: McKissack asked to be debriefed on the award decision three times in ten days without receiving one and as a result filed a protest. Its protest was based on the premise that the winning consultant had another active contract with the agency and that constituted a conflict of interest and that the agency’s evaluation of its qualifications was unreasonable. McKissack’s basis for protest revolved around the FAR requirement that

101 protests be filed within 10 days and an interpretation that debriefings must occur within that period to provide the protester with the information necessary to determine whether or not to protest. Essentially, McKissack sought to couple two parts of the regulation that were written to each stand alone. Decision and Summary: The Comptroller General denied the protest in its entirety citing the following: “[…] the timeliness exception in our Bid Protest Regulations does not apply to debriefings provided in the context of an A/E Brooks Act procurement, and that McKissack was required to file its challenge within ten days of the date it knew or should have known the basis for its protest. The debriefing exception in our timeliness regulations applies only to protests challenging a procurement conducted on the basis of “competitive proposals” under which a debriefing “is requested and, when requested, is required.” 4 C.F.R. § 21.2(a)(2). We note that the protester’s interpretation of the timeliness regulations would result in the current protest being dismissed as premature, because it was filed prior to the debriefing date offered to the protester […]. We conclude that an A/E competition conducted pursuant to the procedures established by the Brooks Act and FAR Subpart 36.6 does not constitute a competition based on “competitive proposals,” and that the exception in our timeliness rules does not apply” (Comp. Gen. B-406489.2, 2012). This decision is important to the synthesis because it highlights the importance of correct understanding of the statutes at work in a given dispute. McKissack tried to advance the theory that a protest in an A/E contract should logically follow a debriefing to give the protestor the information necessary to make a protest/no protest decision. This notion was defeated by the fact that a Brooks Act procurement in the federal sector is not based on competitive proposals as defined by FAR Subpart 36.6. Additionally, if sustained, McKissack’s theory could conceivably create a situation where the federal agency would be at a disadvantage by being required to give a protestor the ammunition it needs to stall a given procurement.