# Petition for Writ of Certiorari — IMS Engineers-Engineers-Architects v. Geren (No. 08-82)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1136%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

| Supreme Court, U.S.
0

FILED
a! a ES, O8-g2_ jy 171 2008
OFFICE OF THE CLERK

In The Witiera K. Suter, Clerk
Supreme Court of the Anited States

IMS ENGINEERS - ARCHITECTS, P.C.,

Petitioner,

Vv.

PETE GEREN, SECRETARY OF THE ARMY,
Respondent.

On Petition for Writ of Certiorari to the United
States Court of Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

JOSEPH A. CAMARDO, JR.
Counsel of Record

CAMARDO Law Firm, P.C.

127 GENESEE STREET

AUBURN, NEw YorkK 13021

Tel: (315) 252-3846

Fax: (315) 252-3508

Altorney for Petitioner

July 11, 2008

Becker Gallagher + Cincinnati, OH - Washington, D.C. - 800.890.5001

i
QUESTIONS PRESENTED FOR REVIEW

1. Does the Contract Disputes Act give the Armed
Services Board of Contract Appeals jurisdiction over
claims of bad faith or improprieties in the award of
task orders under an awarded Federal Government
Indefinite Delivery/ Indefinite Quantity contract?

i

PARTIES TO THE PROCEEDINGS BELOW

Pursuant to Supreme Court Rule 14.1, petitioner
states that all parties to the proceedings in the court
whose judgment is sought to be reviewed are listed in
the caption.

iil
RULE 29.6 STATEMENT

IMS Engineers-Architects, P.C. is an New York
Professional Corporation. No publicly held corporation

owns any of the stock of IMS Engineers-Architects,
P.C.

iv
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ...... i
PARTIES TO THE PROCEEDINGS BELOW .... ii

UIs SOO DE AEEEMAIOIN ED 00 ce eee ee ee en ili

TARIE OF CONTENTS..............05.... iv
TABLE OF AUTHORITIES .................. vi
PETITION FOR A WRIT OF CERTIORARI ..... 1
ee eS 1
I ee 1
STATUTORY PROVISIONS ................. 1
STATEMENT OF THE CASE ................ 1

i. FACTUAL BACKGROUND ............- 1

II. LOWER COURT PROCEEDINGS ...... 11

REASONS FOR GRANTING THE PETITION .. 13

I. THIS CASE RAISES IMPORTANT ISSUES
OF LAW REGARDING REVIEW OF TASK
ORDER SELECTION UNDER THE
CONTRACT DISPUTES ACT .......... 14

Le os Ss Sia eae eee Oe Bh gas 27

APPENDIX

APPENDIX A: Opinion by Administrative
Judge Tunks, March 10, 2006 ............. la

APPENDIX B: Opinion by Administrative
Judge Tunks, December 27, 2006 ......... 26a

APPENDIX C: Judgment by Federal Circuit,
PA I oo is incon Ue os eens ee 34a

Br ree tr; emeentes .. jk tt 36a

vi
TABLE OF AUTHORITIES
Cases

A & D Fire Protection, Inc. v. U.S.,

Fae ey ae BD 6 a dice cc ee ce we os 20, 23
ABF Freight System, Inc., v. United States,

ee ee CD, ok oe eve wae vww es 24
Appeal of Community Consulting International,

Ce a RO i ees ces ocd we eee 21, 22
Burk Court Reporting Co.,

‘DOTBCA No. 3058, 97-2 BCA 7 29,323,..... 21

In re L-3 Communications Corp.,

ASBCA to. 64920 (2006)... . 2... eee 22
LaBarge Products, Inc. v. West,

46 ¥.30 15047 (Ped. Cir. 1995) ............. 20
L.P. Consulting Group, Inc. v. United States,

ey Ae ee eet eee eee 24
Weeks Marine, Inc. v. U.S.,

Tet We Ge ee CAT) ne ce cece oe 20, 26
Statutes
ee ees. BD es ak ke bee beeen 16, 20
ME eg beak be ee eee 2

Be ED 5 8 od 5p 6 oie 8 Ok 1

Bee rs ORR GD 6.6 boosie boy www ave Siero eels 22
4 Sa ID ss iid gas Wak cee ee ae ve ede 16
ee I RD oe ee oe pes wae weitere 1, 12, 19
CEE ED: vy 5S 5 Wd ew we wi aw ee ws 22
Regulations

TI i abs ho a dig Sede a ie lw wc’ 14
MR eee, BO) (1) 18) oc eee ees 15
Other Authorities

COMPETITION FOR TASK ORDERS: THE
EXCEPTION OR THE RULE?, 18 No. 10 Nash
Pe Ce ei re ee Bee 16, 25

CONQUERING UNCERTAINTY IN AN
INDEFINTE WORLD: A SURVEY OF
DISPUTES ARISING UNDER IDIQ

CONTRACTS, 37 Pub. Cont. L.J 415 ....... 25

POSTSCRIPT: BREACH OF LOSS OF THE FAIR
OPPORTUNITY TO COMPETE, 20 No. 12
PMOL Oe SRTURNS POU, OS nn i bc oss este ee we 25

TASK ORDER CONTRACT: THE BREACH OF
LOSS OF THE FAIR OPPORTUNITY TO
COMPETE, 16 No. 10 Nash & Cibinic Rep. P
We er ea PVT ROR Ea W bee Kee 25

vili

RESTATEMENT (SECOND) OF CONTRACTS
SE BOOB), BOCKAOIE) cee ee see ceneeios 22

1
PETITION FOR A WRIT OF CERTIORARI

Petitioner IMS Engineers- Architects P.C. (“IMS”)
respectfully petitions for a writ of certicrari to review
the judgment of the United States Court of Appeals for
the Federals Circuit in this case.

OPINIONS BELOW

The opinion of the Armed Services Board of
Contract Appeals (“ASBCA”) is reproduced in
Appendix A. The opinion of the Armed Services Board
of Contract Appeals on IMS’s Motion for
Reconsideration is reproduced in Appendix B. The
opinion of the Court of Appeals for the Federal Circuit
is reproduced in Appendix C.

JURISDICTION

The judgment of the Court of Appeals for the
Federal Circuit was entered on April 14, 2008
(Appendix C). The jurisdiction cf this Court is invoked
under 28 U.S.C. § 1254 (1).

STATUTORY PROVISIONS

This case involves provisions of the Contract
Disputes Act, 41 U.S.C. §§ 601-13. Pertinent statutory
provisions and administrative materials are included
in Appendix D.

2
STATEMENT OF THE CASE

I. FACTUAL BACKGROUND

IMS was certified as a socially and economically
disadvantaged 8(a)' business by the United States
Small Business Administration (“SBA”). IMS provides
architect-engineering services for Hazardous, Toxic,
and Radioactive (HTRW) waste sites. Mr. Iqbal Singh
is a Sikh from India and is the founder of IMS. A2’.
On January 27, 1993, the Army Corps of Engineers
Omaha District (“District”) issued Request for
Proposals (“RFP”) No. DACW45-93-R-0055, for an
Indefinite Delivery Indefinite Quantity (IDIQ)
contracts for consulting services at miscellaneous
HTRW sites. A3.

On August 4, 1994, the District awarded Contact
No. DACW45-94-D-0049 (“Contract 0049”) to the Small
Business Administration (“SBA”) with a subcontract to
IMS pursuant to what is called a tripartite agreement.
R56-57°. This IDIQ contract was for a one year period

' “8(a)” refers to a Federal Government Contracting program
whereby contracts are awarded on a sole source or limited
competition basis to eligible small businesses owned by
economically and socially disadvantaged minorities. See 15
U.S.C. § 637.

?4A2” refers to page 2 of the Appendix bound with this Petition for
Certiorari.

° “R56” refers to page 56 of the Corrected Appendix before the
United States Court of Appeals for the Federal Circuit, which is
not bound with this Petition for Certiorari.

3

with four option years. A4. The minimum and
maximum amounts of services available under the
contract were $2,500.00 and $10,000,000.00. A4.

The contract required IMS to “perform all services”

required “upon receipt of duly executed delivery
orders” A4

This contract contained certain clauses specific to
8(a) contracts: I-31 (FAR 52.219-8), 1.33 (FAR 52.219-
11a), I-33 (FAR 52.219-11c), 1.34 (FAR 52.219-12), 1.36
(FAR 52.219-14), and 1.37 (FAR 52.219-17). R62-78.

In February 1995, March Air Force Base, one of the
District’s customers, specifically asked that the
District to award a contract to Black & Veatch Waste
Science, Inc. (“B&V”) for a treatablilty study at an
abandoned gas station at March Air Force Base. B&V
was a large business that had performed prior work at
the site. A5. The Customer had substantial power in
the issuance of delivery orders and any acquisition
decision made by the District could be overridden by
the customer canceling the requirement. R344.

On March 9, 1995, the District’s Project Execution
and Planning Board (“PEP Board”) met to determine
how the March Air Force project was to be conducted.
The PEP Board was responsible for deciding how the
District would fill various customer requests. A5. The
District was behind on its small business goals, so the
PEP Board decided to process this project through an
8(a) firm. Ad. The PEP Board produced a
“Memorandum for Record” indicating that “The
treatability work at March AFB should be contracted

4

through an 8(a) contractor while maintaining
continuity of the design in a timely manner.” R92-94.

Iqbal Singh testified that On April 21, 1995, Mark
Mercier, the Liaison Officer for IMS’s Contract, spoke
to him on the phone and told him that IMS had a
“chance” of being awarded a delivery order for a
treatability study at an abandoned gas station on
March AFB if he agreed to subcontract 90 to 92
percent of the work to B&V. A6.

On May 1, 1995, under IMS’s existing IDIQ
contract, the District issued IMS a Request for
Proposals (“RFP”) for a treatablilty study at March Air
Force Base, for a six month study using two
“innovative technologies,” soil washing and low
thermal desorption. A7.

On or about May 9, 1995, IMS began negotiations
with B&V to use B&V as a subcontractor for the work
at March AFB. A7.

On June 5, 1995, B&V’s Project Manager wrote to
IMS. The language of this letter was quoted in the
ASBCA decision as follows:

[A]s you know, we... had discussions with the
Omaha District regarding work at [the site] for
several months prior to issuance of the [RFP].
It is our understanding that IMS will provide
program management and QA/QC oversite

{sic}... and [that B&V], as subcontractor to
IMS, will provide all onsite, reporting, and
related services. . . [B&V] will also be

responsible for contracting with.

5

subcontractors ... Our proposal to you is based
on this understanding. (emphasis added). A7,
8.

A portion of this same letter, not cited in the
ASBCA’s decision, stated that “If you question the
acceptability of our labor rate basis or markup for this
work by the District, I suggest you ask Mr.
Linbrunner*, or the contract officer, if these changes
and rates are acceptable. It is my understanding that
these rates will be acceptable to District; however, if
they are not, we are open to negotiation.” (emphasis
added) R97-98.

On July 24, 1995, the District issued Delivery
Order 0003 (“DO 0003”) to IMS in the amount of
$932,828, under IMS’s current IDIQ contract. A5. The
notice to proceed (“NTP”) was issued on July 27, 1995.
A8. At the time the Delivery Order was issued, IMS
and B&V did not have a signed sub-contract, and IMS
and B&V negotiated the terms and conditions for
entering into a subcontract through August 21, 1995.
A8. Negotiations between IMS and B&V “stalled” and
the ASBCA found that IMS and B&V did not enter
into a subcontract. AQ.

On October 24 and 26, 2005, Singh attempted to
renegotiate DO 0003 with the District, so that IMS
could perforin 100% of the work. A9. The District
disagreed with IMS regarding the negotiation of
certain costs, and attempted to cut off the negotiations,

* Mr. Linbrunner was the “Technical Manager” for March Air
Force Base. A5.

6

rather than splitting the difference as suggested by
Singh. A9-10. The ASBCA found that Singh then
stated that he would agree to any costs that the
Government thought fair and reasonable. A9-10.
Singh accepted the prices proposed by the
Government. Al0. However, the ASBCA found that
“the parties did not reach agreement to modify DO No.
0003.” A10.

In any case, IMS followed up by transmitting to the
Corps a typed acceptance memorializing the agreed
upon numbers, proposing to do the work at a cost of
$885,173, a savings of approximately $57,000 from the
earlier proposal involving B&V that had been accepted
by the Corps. R120-123. The cover letter to this
acceptance stated “lilf you believe the re-negotiated
numbers should be different/lower as per your
assessment, those numbers will be acceptable to us.”
Al10. The District did not formally respond. A10.

On November 6, 1995, the Environmental
Coordinator for March AFB requested the District to
terminate DO No. 0003 for the convenience of the
Government, since “The Delivery Order was awarded
in July 1995 and no work has been accomplished. .. we
still require this project to be accomplished in FY 96
and suggest utilizing your $20M Indefinite Delivery
Contract with Fluor Daniel Inc.” A10.

On November 9, 1995, the technical manager for
March AFB requested in a mero that the District
terminate DO No. 0003, supposedly since a “recent
Lawrence Livermore Report” indicated that the lower
cost method of bioventing could be used instead of low
temperature thermal desorption or soil washing. A11.

7

Biogas venting was in fact not a “recent” method but
was available prior to 1995. A11.

On February 20, 1996, the Deputy Chief of the
District's HTRW Branch, transmitted a request for
proposals to Fluor Daniels for the work covered by DO
0003. R126. On March, 28 1996, the District issued a
delivery order to Fluor Daniels in the amount of
$615,332. R127. The delivery order required Fluor
Daniels to perform a treatability study at the gas
station on March AFB, using the method of biogas
venting. Fluor Daniels subcontracted 80 percent of the
work to B&V, the contractor originally requested by
March Air Force Base. A11.

Contracting Officer Haskell terminated DO No.
0003 for the convenience of the government on May 2,
1996. The stated reason in the letter was:

“Re-negotiations of the delivery order were
conducted utilizing IMS personnel versus Black
and Veatch personnel were accomplished.
However, over the course of time, the original
requirement for the work to be accomplished at
the site changed significantly, making the
treatability study unnecessary. Execution of
work has not been accomplished, therefore it is
considered to be in the Governments best
interest to terminate the delivery order in its
entirety.” R128-129.

Despite repeated calls and letters to District
Personnel, IMS was never awarded any more task
orders under its ID/IQ contract after the termination

of DO 0003. R311-312. On October 1, 1997, the

8

District advised Appellant that it would not exercise
the third option year of IMS’s ID/1Q contract, allegedly
due to insufficient work load. Al3. ~

It was revealed during the ASBCA hearing that the
failure to issue more work was linked to a belief among
Corps personnel that IMS has been deficient in its
performance under DO 0003. Contracting Officer
Haskell testified that he felt “let down” and
“disappointed” in IMS and that the District Project
Managers had to “literally make excuses for IMS to
their client” for their supposed failure to_ timely
complete DO 0003. R362-364. He agreed that his
disappointment with IMS was substantially based
upon his belief that a notice to proceed had been sent
to IMS after the re-negotiation, which turned out to be
not the case. R363. Under questioning, Haskell stated
“I apologize for having the wrong information” and
“again I apologize” and confirmed that his information
was faulty regarding IMS’s supposed failure to
progress its work. R366-368.

Colonel Voltz, Commander of the Omaha District of
the Corps, stated that the reason why no more delivery
orders were issued to IMS “was mainly a situation of
need and also a situation of customer preference and
customer demand,” (R256) (emphasis added). Voltz
then stated that “Based on conversations with my
project managers” he felt that “The performance [of
IMS] was not to the standard that people would have
liked to have seen.” R257. Voltz went on to state that
IMS had “caused their chief customer at the base to
question their ability to get the work done in the
period of time in which it was to be accomplished.”
R258. Once again, Colonel Voltz testified that his

9

belief was based upon “the verbal testimony of the
people I worked with.” R259.

Colonel Voltz, also testified regarding ill feeling
about 8(a) contractors: “I would say that in most cases
where an 8&(a) contractor is brought in to an
installation that’s used to dealing with big business,
they’re always - - I shouldn’t say always, but they’re
frequently very skeptical about that, and it’s
frequently because of the 8a program that the Corps
decides to do this, and when it is done, it is typically at
the objection of the installation. So that’s not a unique
case for IMS. I think that is something that many of
our 8(a) contractors face.” (emphasis added) R266.

More testimony before the ASBCA also revealed
that 8(a) contractors were under a stigma. According
to testimony by Contracting Officer Haskell,
reproduced in the ASBCA’s decision:

Q [In your deposition you stated there was a ]
stigma associated with an 8(a) contract.

A. In certain environments, yes.
Q. Tell us about that and how you perceive that.

A. I find [that] selling an 8(a) to a customer is
somewhat trying... I have no control over it. Only
[the customers] have control over that.. . All I can
do as a coi.tracting officer and someone within the
acquisition process knowing full well how
important the 8(a) program is we have to sell that
to our customer in some, maybe many, instances.

10

That may be an easy sell and it may be a very
difficult sell.

JUDGE TUNKS: What do you mean [by that]?

Mr. Haskell: [The] thing. . . is. . . we’re dealing with
a customer and if they choose not to come to us,
[they don’t have to]. A6.

Contracting Officer Haskell also testified that the
District had insufficient work to warrant exercising
the options and that the decision to not exercise the
options was a business decision. Al13. However, Singh
testified that Voltz had told him “there is never a
shortage of work” in the District. R315.

In 1995, the total amount of environmental
contracts awarded by the District was $43,000,000 and
by 1998 it was $267,000,000, which was a consistent
increase in work. In 1997, the year that there was
supposedly insutiicient work to justify the continuation
of the IMS contract, new 8(a) contracts of $5,000,000,
$10,000,000 and $20,000,000 were awarded. R80-82.

_ Government documents in the record clearly
indicated that IMS had consistently received superior
performance reviews. An internal District memo
regarding IMS’s work on the Lincoln AFB, dated May —
5, 1997 stated “This is one of the best QCSRs I have
ever seen. The data validation is very thorough.” A
Fax transmittal from the District to IMS dated May
27, 1997 stated: “Nice report. . .” and the enclosed
comments stated “Another quality and professional
report submitted by IMS for USACE review. Keep up
the good work!” Kevin Mayberry, Chief of Surveys

11

Mapping and GIS, wrote in regards to IMS’s work at
the Atlas Missile Site at Lincoln Air Force Base: “IMS
performed very well for us on this project, a very
responsible, responsive firm.” The project. manager for
IMS’s work at the Fuel Hydrant System at Seymour
Johnson Air for Base noted that IMS’s work was
completed on schedule, completed within budget, and
of satisfactory quality. In a letter dated August 23,
1996, Smart, Deputy Chief of the District’s HTRW
Branch stated “Your staff should be complimented on
the fine research, work, and professional efforts on the
D.O. tasks.” R100-106. Contracting Specialist
Overgaard confirmed that she had heard that IMS did
very good work in the field. R324. More positive
comments from other Districts are included at R107-
13:3.

Il. LOWER COURT PROCEEDINGS

On May 2, 2000 IMS submitted to the Contracting
{ ficer a Request for Equitable Adjustment (“REA”)
seeking $5,773,760 from the Government pursuant to
Contract 0049. This REA was denied by the
Contracting Officer on September 18, 2000. On
November 22, 2000 IMS filed a complaint against the
United States with the ASBCA.

On May 14, 2001, the ASBCA dismissed the appeal
for lack of jurisdiction because the Claim was not
certified when it was submitted to the Contracting
Officer. On July 17, 2001, Appellant requested the
Contracting Officer to reconsider the Claim (then
certified) and the September 18, 2000 final decision.
On July 30, 2001, Appellant appealed the deemed
denial of its claim. The appeal was docketed as ASBCA

e 12

No. 53471 on August 1, 2001. On August 8, 2001, the
Contracting Officer refused to reconsider the final

decision, and the matter proceeded to trial before the
ASBCA.

In its trial before the ASBCA, IMS argued that it
had been the victim of bad faith and racial
discrimination, leading to the termination of Delivery
Order 0003, and the failure to exercise the options
years on its contract. As part of this bad faith scheme,
IMS alleged that it had been expressly directed by the
Corps to use B&V as a subcontractor, and alleged that
when it had failed to do so, the Corps has retaliated by
terminating DO 0003, by failing to issue further task
orders to IMS, and by refusing to exercise the options
under IMS’s contract. IMS also argued that the Corps
used improper and discriminatory practices in the
issuance of task orders, leading to the Corp’s failure to
issue additional task orders. to IMS under Contract
0049 after the termination of DO 0003.

On March 9, 2006, the ASBCA issued a published
opinion and order, granting judgment in favor of the
Government. With regards to IMS’s arguments
regarding the termination of DO 0003 and the failure
to exercise the options on its contract, the ASBCA
found that IMS did not prove bad faith. However, with
regards to IMS’s task order selection argument, the
ASBCA claimed to lack jurisdiction, stating that:
“Section 605(a) of the Contract Disputes Act (Act), 41
U.S.C. §§ 601-13 limits our jurisdiction to claims
‘relating to a contract.’ As a result, we lack
jurisdiction over allegations of irregularities in the
selection process and misuse of IDIQ contracts. These
issues are reserved for other fora.” A17.

13

IMS filed a Motion for Reconsideration before the
ASBCA focusing primarily on erroneous findings of
fact in the ASBCA decision, and pointing out
overlooked evidence. This Motion for Reconsideration
was denied on December 27, 2006. A26-33.

IMS proceeded to appeal to the United States Court
of Appeals for the Federal Circuit, asserting both
factual and legal error. IMS expressly raised the point
that the ASBCA’s failure to consider “allegations of
irregularities in the selection process” on jurisdictional
grounds was error.

In its decision of April 14, 2008 the Court of
Appeals for the Federal Circuit affirmed the decision
of the ASBCA without opinion. A34-35. As will be
explained below, this disposition by the Federal Circuit
leaves important questions unresolved regarding the
jurisdiction and powers conferred by the Contract
Disputes Act, as it relates to a contractors due process
for contesting unfairness under an existing ID/IQ
contract and the split of authority between the Boards
of Contract Appeals and the United States Court of
Federal Claims. These questions have applicability to
the entire Federal Government Procurement system.

REASONS FOR GRANTING THE PETITION

The Lower Courts’ claim that they lack jurisdiction
would deny all review of task order issuance under an
existing ID/IQ contract and would deny IMS its due
process. It is no exaggeration to state that the
decisions below would essentially give the Government
an absolutely free hand to deny or grant task orders at
will based on their subjective desires, and would allow

14

informal “blackballing” of Federal Government
contractors without notice or right to be heard.
Considering the ever increasing prevalence of the
ID/IQ system in Federal Government contracting, the
decision of the Courts below takes on a dire
significance as an enabler of waste and fraud, as well
as a grievous violation of procedural due process. It is
for these reasons that IMS respectfully brings this
matter to the attention of the United States Supreme
Court.

It should also be noted that the law in this area is
highly unsettled, with some United States Federal
Court of Claims and Armed Services Board of Contract
Appeals decisions in direct conflict with the decision in
the current case, and some in seeming agreement. It
was the hope of IMS that the issue would be addressed
in the decision of the Federal Circuit, but the Federal
Circuit elected to affirm without opinion. Considering
the importance of this question to the entire
Government procurement system, it is submitted that
this conflict should be resolved conclusively and
decisively by this Court.

I. THIS CASE RAISES IMPORTANT ISSUES OF
LAW REGARDING REVIEW CF TASK
ORDER SELECTION UNDER THE
CONTRACT DISPUTES ACT

Before the questions in this case may be
intelligently discussed, it is essential to understand
the nature of Indefinite Quantity/ Indefinite Delivery
(ID/IQ) contracting. 48 C.F.R. 16.504 establishes the
ID/IQ task order contracting method:

15

“(a) Description. An indefinite-quantity contract
provides for an indefinite quantity, within
stated limits, of supplies or services during a
fixed period. The Government places orders for
individual requirements. Quantity limits may
be stated as number of units or as dollar values.

(1) The contract must require the Government
to order and the contractor to furnish at least a
stated minimum quantity of supplies or
services. In addition, if ordered, the contractor
must furnish any additional quantities, not to
exceed the stated maximum. The contracting
officer should establish a reasonable maximum
quantity based on market research, trends on
recent contracts for similar supplies or services,
survey of potential users, or any other rational
basis.”

As can be seen from the above language, once the
minimum quantity is ordered, an ID/IQ contract
functions as a sort of “shell,” under which more work
may or may not be issued by the Contracting officer.
48 C.F.R. 16.504 (c) (1) (i) also encourages the
simultaneous award of multiple ID/IQ contracts to
several contractors: “the contracting officer must, to
the maximum extent practicable, give preference to
making multiple awards of indefinite-quantity
contracts under a single solicitation for the same or
similar supplies or services to two or more sources.”

Taking these provisions together, ID/IQ contracting
can be fairly described as a system where the
contracting officer issues a number of ID/IQ contracts
to different contractors for a certain category of work,

16

such as environmental remediation. As a job arises
that need to be completed, the Contracting Officer
issues a task order under one of the awarded ID/IQ
contracts. While this task order is akin to the award
of a free standing contract, notice and competition
requirements are substantially relaxed. First of all,
standard notice requirements do not apply, and are”...
not required for issuance of a task or delivery order
under a task or delivery order contract ....” 41 U.S.C.
§ 253)(a) (2005). Normal procurement competition
requirements are replaced by a requirement for a “fair
opportunity” to compete. 41 U.S.C. § 253)(b) (2005).
However 10 U.S.C. § 2304c (d) removes the ability to
file bid protests in most circumstances, and leaves “fair
opportunity” enforcement to an agency “ombudsman.”

Both the prevalence of the ID/IQ system and its
flaws have attracted significant commentary. In fact,
the relatively new method of ID/IQ contracting has
largely supplanted the traditional methods of
Government acquisition. Some of the leading experts
in government contracting, Professors Nash and
Cibinic have noted that “(t]he major ‘acquisition
reform’ at the end of the 20th Century turned out to be
the huge shift to the use of task order instead of new
contracts for obtaining services. Almost all major
procuring agencies appear to have made this ‘reform,’
although the approaches have varied. . . Whichever
technique is used, there are requirements for
competition in issuing such task orders and there are
numerous indications that Contracting Officers are
diligent in finding ways to avoid such competition.” 18
No. 10 Nash & Cibinic Rep. 9 42. Accordingly, the
issues in the instant case have wide applicability

17

throughout the entire spectrum of Federal
Government Contracting.

To compound matters even further, the IMS ID/IQ
contract was a set-aside into the SBA’s 8(a) program
and as such it is submitted that any work that was
contemplated under the agreement would be set aside
into that program. The Federal Acquisition
Regulations allow for withdrawing or modifying a
small business set aside, but only before the award
(See FAR 19.506)

It should be noted that IMS’s concerns regarding
jurisdiction over task order selection are not merely
academic in nature. While the written decision of the
ASBCA did not consider irregularities in the task
order selection process, certain comments made on the
record by the ASBCA judge indicated that had such
issues been considered, the result could well have been
favorable for IMS. These extraordinary comments are
worthy of extensive review, and may be found at pages
R343 to R357. These comments include:

Here is another concern that I have. You
know, one of the premises of Government
contracts is that there be competition, that
there be full and open competition. This

contracting scheme, thi w
eve issues different ID/1Q contracts tome
is just an easy way of getting around the
requirement to com ok such
legal considerations as 8(a) contractors. . .

I don’t see - - I don’t know anything about
ID/AIQ contracts but I will shortly. I don’t
understand how you could - - I know its not you

18

personally. You’re just doing your job. I
understand that, but I have a problem with that
because what it allows is for there to be a
completely secretive selection for task orders. . .

It seems like these criteria are kind of
flexible. I think that’s what I object to. It’s
flexible and it’s secret. I can’t lay it in my
hands and see what it is, one, two, three, four,
five that this contractor has to do to get a
contract. I can’t do that...
office can do anything they want without regard
of the requirements such as 8(a) or full and
open competition if they want to. And if they
don’t want to, they don’t have to. I may be
reading all this, and I’m sure that Towson [the
identity of “Towson” is unclear from the record]
is going to tell me.

I’m sure I’m going to hear about all this but
I’ve been sitting here turning this over in my
mind and I don’t see how one can justify this
scheme based on what I know about

Well, you all may be able to show me that
I’m totally all wrong which is entirely possible.
Honestly I don’t know anything about ID/IQ
contracts but I do know I’m sitting here
listening to this and I’m going ‘Excuse me? How
can this be.’ We have statutes that govern how
contracts are used.

This permits the using activity to do
anything they want just like that. Now, I may
be wrong... R343-357. (emphasis added).

19

After the ASBCA Judge aired these concerns,
Appellant’s attorney further illustrated the point that
the Corps wished to use IMS’s contract capacity to
funnel work to selected large business, by reading from
an “audit report” that had been entered into evidence:

The proliferation of large ID/IQ contracts
has reduced United States Army Corps of
Engineers Small Business contract award
opportunities. . . Six contractors (four large
businesses) were awarded 70 delivery orders in
the amount of $10.125 million. Three of these
contractors, two large businesses, accounted for
63 which is 98 percent of the delivery orders
and $8.838 million, 87 percent of the buyers. . .
Also, USACE’s compliance with the competition
in contracting and Small Business Investment
Act are adversely affected.” R355-356.

When asked “Now, those comments and
observations seem to be consistent with what your
Honor was just talking about”, Judge Tunks replied
“Yes.” R356

However, these issues were ignored in the ASBCA’s
written decision. The ASBCA avoided the issue by
stating at page 10 that “Section 605(a) of the Contract
Disputes Act (Act), 41 U.S.C. §§ 601-13 limits our
jurisdiction to claims ‘relating to a contract.’ As a
result, we lack jurisdiction over allegations of
irregularities in the selection process and misuse of
IDIQ contracts. These issues are reserved for other
fora.” Al17.

20

While stating that “these issues are reserved for
other fora,” the ASBCA did not indicate what these
“other fora” were, and Appellant is sincerely unaware
of any other “fora” that is available to it for the
advancement of its claims regarding task order
selection, other than the ASBCA or the United States
Court of Claims, which have jurisdiction over “all
contractor claims based upon a valid contractual
theory.” LaBarge Products, Inc. v. West, 46 F.3d 1547,
1554 (Fed. Cir. 1995).

Generally, parties have a right to contest
procurement actions before the issuance of a contact.
However, an anomaly exists in ID/IQ contracting
because an ID/IQ contract is first issued as a shell
contract and then the Government places task orders
against that contract. 10 U.S.C. § 2304c (d) expressly
states that “A protest is not authorized in connection
with the issuance or proposed issuance of a task or
delivery order...” Thus, in most circumstances, a bid
protest action seeking to set aside the task order
award is not auowable for task order selection

decisions. Weeks Marine, Inc. v. U.S., 79 Fed. Cl. 22,

24 (2007); A & D Fire Protection, Inc. v. U.S., 72 Fed.
Cl. 126, 133 (2006). Thus, to the extent that the

ASBCA may have been suggesting that IMS could
have taken a bid protest to the United States Court of
Federal Claims, rather than a Contract Disputes Act
Claim, the ASBCA is mistaken.

However, some Boards of Contract Appeals have
recently recognized after an ID/IQ contract has been
issued, a contractor has some rights under the shell
contract to seek due process by maintaining a cause of
action under the ID/IQ contract. Even if the

21

Government has satisfied its burden by purchasing the
minimum amount under the contract, the contractor
should be able to seek breach of contract damages
stemming from a lack of fair consideration on task
order awards. In the case at bar, IMS contended that
it was not being fairly considered for addition task
orders beyond DO 0003, but the ASBCA refused to
hear this argument based on a lack of jurisdiction.
Essentially, the ASBCA is setting a dangerous
precedent by giving the government an unbridled
license to do whatever it wants under a small minority
business program that is designed to help contractors,
not hurt them.

IMS was not the first contractor to face the
dilemma of how to obtain review of problems or
irregularities in task order selection, and several cases
exist on this point. Unfortunately, these cases appear
to be in direct conflict, and-do not propound a clear
rule of law. By affirming without decision, the Federal
Circuit left the confusion unresolved.

In Burk Court Reporting Co., DOTBCA No. 3058,
97-2 BCA { 29,323, the Board acknowledged that a
contractor could maintain a cause of action after the
Government ordered the minimum quantity and that
while an indefinite quantity clause of the contract only
obligates the Government to order the minimum
stated service, the contractor could maintain a cause
of action for breach of contract based on the
goveriment lack of fair consideration on task order
awards.

Appeal of Community Consulting International 02-
2 BCA P 31940 was also one of the first cases to

22

indicate that Contract Disputes Act Jurisdiction
extended to problems in the issuance of task orders.
Similar to IMS, the Appellant in Appeal of Community
Consulting International alleged that its ID/AIQ
contract had been breached by the Government’s
failure to provide a fair opportunity to compete for task
orders. The Government moved for summary
judgment, on the grounds that the Appellant’s cause of
action was essentially a bid protest of an ID/IQ task
order, and was ak ee ? = gi $5 ay 9 ia °

fe a

ning Ee TRY a ee” te

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1136%3A1. Public record. Not legal advice.