By: Michael H. Payne
There is an old saying that "you win some, and you lose some." Well, if you are a construction contractor who competes in the world of Multiple Award Task Order Contracting ("MATOC"), you usually lose. Under sealed bidding, which dominated the procurement of federal construction for many years, a contractor who was not the low bidder could always compete for the next project. In the MATOC arena, a contractor who is not selected to be one of the chosen few to compete for task orders over what is often a three to five year period may not be able to compete for the "next project" for a long time. What this means is that there are a few winners, but there are many more losers.
Even if a contractor is fortunate enough to be selected as one of the MATOC master contract holders, there is no guarantee of being selected for future task orders. Every construction MATOC features a "seed" project that serves as the basis of the price competition for the evaluation of the offers on the master contracts. If a contractor does not win the seed project, there may not be another task order for a long time, and the award of the ensuing task orders may go to someone other than the low bidder. The reason for this is that most construction MATOCs are negotiated, best value, procurements ("RFPs"), and past performance, experience, technical merit, quality of personnel, small business subcontracting, and other evaluation factors may come into play. Although it can be argued that the award of a master MATOC should pre-qualify all of the MATOC holders, we have heard complaints from a number of contractors who lose out in the competition for task orders because they do not score well on past performance, or one of the other evaluation factors. This has never made sense to me because if a contractor has won the fierce competition for one of the master MATOCs, price should be the discriminator for the task order awards. If the contractor is not technically qualified to receive a task award on a lowest price proposal, why was the contractor selected as one of the MATOC holders in the first place?
Those who are really left out in the cold, however, are the construction contractors who fail to win one of the master MATOC awards. Simply because a contractor may not have scored particularly well technically, or simply because the contractor's price on a seed project may have been too high, does not mean that it will always be that way. A contractor can do a much better job of putting together a competitive proposal the next week, but if all of the upcoming projects are tied up in MATOCs, the door is closed. Simply because a contractor submits the lowest price on a seed project does not mean that the contractor will be similarly competitive on future projects. It is for this reason that I have been a frequent critic of indefinite delivery/indefinite quantity ("IDIQ/MATOC") contracting for construction. I do not believe that FAR 16.5, dealing with various indefinite delivery contracts, was ever meant to be applied to construction, and I believe that the system unfairly penalizes a lot of very qualified contractors who simply are not adept at proposal writing. Construction was successfully procured using sealed bidding for many years, and that system was more open and fair. The new system simply results in too many losers and not enough winners. (See the earlier article "Has the Corps of Engineers Gone MATOC Crazy?").
Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters. He also serves as the Executive Director of FedCon Consulting, an ancillary business of the firm that involves former contracting officers, procurement and technical personnel, as well as lawyers, in providing assistance to federal construction contractors in the preparation of proposals.
By: Michael H. Payne
By: Michael H. Payne
The recent increase in the use of Indefinite Delivery/Indefinite Quantity (“IDIQ”) contracting for construction has become even more evident by looking at the “FY 2011 – Forecasted Acquisition Strategy” issued by the Jacksonville District of the Corps of Engineers. A review of the list reveals that the majority of the construction work in the coming year will be awarded in the form of task orders under existing Multiple Award Task Order Contracts (“MATOC”), or under task orders on new MATOCs to be issued. The Jacksonville District is not alone in this trend and there is an unmistakable decline in the number of contracts available for full and open competition.
I have been a frequent critic of the use of IDIQ contracts for construction because I do not believe that the drafters of the FAR ever envisioned that the system described in FAR 16.504 for the purchase of supplies and services on an IDIQ basis would ever be used for construction. Nevertheless, that is exactly what has happened as contracting agencies continue to insist that IDIQ/MATOC contracting is more “expedient.” Even more disturbingly, most of these solicitations are being issued as RFPs (negotiated procurements) in total disregard for the FAR 36.103 preference for sealed bidding in the procurement of construction.
This consolidation of procurements could not come at a worse time for the construction industry. As state, local, and commercial contracting opportunities have declined during the recession, many contractors have looked to the federal market for work. What they have found is a large federal construction budget that is often used to fund various forms of small business set-asides, including MATOC set-asides, and various large-dollar multi-state IDIQ/MATOC procurements. There is, therefore, an ever-growing pool of qualified construction contractors who have fewer contracting opportunities. The result of all this is that both small and large business contractors are being denied the opportunity to effectively, and fairly, compete for billion of dollars worth of federal construction. The federal government, the construction industry, and the taxpayers all end up being the losers under this system.
Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal construction matters.
The Court of Appeals for the Federal Circuit has decided two cases that assure the continued use of the Multiple Award Task Order Contract (“MATOC”) in federal construction contracting. In the first case, Weeks Marine, Inc. v. United States, the United States Court of Federal Claims decided a bid protest in favor of Weeks Marine. The protest challenged the right of the South Atlantic Division of the Corps of Engineers to use MATOC procurement to solicit all maintenance dredging and shore protection projects for the next five years by establishing a MATOC pool of contractors who would compete for projects solicited on a task order basis. The Protester contended, and the Court agreed, that since sealed bidding had been used successfully in the procurement of dredging for many years, there was no basis to use contracting by negotiation, much less MATOC. The Court found that the Corps’ Acquisition Plan did not provide a rational basis for a departure from sealed bidding.
The Court of Appeals reversed the lower court and concluded that the Corps was required to “supply a reasoned chronicle of the risk assessment,” and did so “by stating the reasons for its procurement decision and the thinking behind those reasons.” Therefore, the Court concluded that as long as the Corps stated its reasons, and the thinking behind those reasons, the Court would not “second-guess” the Corps. In other words, even if the Corps’ rationale for using MATOC procurement made no sense and was not well supported, the Court would not disturb the Corps’ right to use a MATOC as long as some reasons were given. In this regard, the Court stated “If the court finds a reasonable basis for the agency’s action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the procurement regulations.”
The second MATOC decision, Tyler Construction Group v. United States, involved a protest by a small business concern against the use of MATOC procurements to procure barracks construction in an eight state region. The protester contended that Indefinite Delivery Indefinite Quantity (“IDIQ”) contracts may only be used to procure supplies and services, and not construction, pursuant to FAR 16.5. MATOC procurements are solicited through the IDIQ contracting procedures specified in FAR 16.5, but that section of the FAR does not mention “construction” even once. Tyler argued that the Corps, under the guise of “innovation,” had adapted a contracting method used to procure supplies and services, like rounds of ammunition or electrical repair services, to the acquisition of large multi-million dollar buildings.
The Tyler protest also addressed the issue of improper bundling in violation of the Small Business Act. By taking individual projects, many of which were less than the $31.5 million (now $33.5 million) small business size standard for general construction, and bundling them into a $300 million MATOC procurement, the Corps effectively prevented small business concerns from competing as prime contractors. In other words, even though many small businesses could compete for projects in the $30 million range, they are excluded by the size of the bundled MATOC solicitation. In fact, both small businesses and small to medium-sized large businesses are effectively excluded from competition by MATOC procurements.
The Court of Federal Claims ruled that since the use of IDIQ/MATOC was not specifically prohibited in the procurement of construction by the FAR, it was therefore permitted. The Court also found that the Corps had conducted market research and had concluded that there was an industry consensus that bundling was “necessary and justified.” The Court of Appeals agreed with the lower court and decided that “The Corps, like other federal procurement entities, has broad discretion to determine what particular method of procurement will be in the best interests of the United States in a particular situation.”
In this writer’s opinion the widespread use of MATOC procurements to procure large dollar value construction projects is not consistent with the FAR. It is interesting that the use of the IDIQ procedure for construction was not subjected to review by the Defense Acquisition Regulations Council (DAR Council), as is commonly done when a new regulation is needed, or when there is a request for a deviation from an existing regulation. Although the Corps has taken the position that IDIQ/MATOC is an innovative method that is within its procurement discretion, we find it to be strange that a method affecting billions of dollars of construction procurement is not specifically addressed by the FAR, or the supplemental agency regulations (DFARS, AFARS, EFARS). In fact, when the Corps was challenged because it was not following its own regulations (EFARS) that addressed IDIQ contracting, it promptly rescinded those regulations. What the construction contracting community is left with is a multi-billion dollar procurement methodology that is unregulated, is ripe for abuse, and that only serves the interests of a reduced federal procurement workforce. It certainly remains to be seen whether MATOC is truly more efficient or cost-effective than traditional single project solicitations.
Most disturbing of all, is the hands-off policy adopted by the Court of Appeals for the Federal Circuit on matters of federal procurement. If the agencies can do whatever they want, as long as it is not expressly prohibited by law or regulation, and as long as they provide some reason for their decisions, the competitive opportunities that have been the hallmark of federal construction contracting will continue to be eroded. Many capable contractors have been, and will be, denied a fair opportunity to compete and, in the long run, that cannot possibly be in the best interests of the construction contracting community, or the federal government.
Michael Payne is a Partner and is the Chairman of the firm's Federal Practice Group.
Protest Challenges Solicitation for Single Award Task Order Contract (SATOC) Involving Military Construction
A protest was filed recently in the United Stated Court of Federal Claims by our firm on behalf of a small business construction contractor challenging a solicitation issued by the Fort Worth District of the U.S. Army Corps of Engineers. The solicitation, No. W9126G-07-R-0123, is one of four similar solicitations for the construction of military projects described as Advanced Individual Training (AIT), Basic Training (BT) Barracks, and Warrior in Transition (WIT) facilities. The construction is being solicited through the use of a negotiated Indefinite Delivery/Indefinite Quantity (“IDIQ”) procurement on a Single Award Task Order (“SATOC”) basis. Under the terms of the solicitation a single contractor will be selected to perform task orders, without competition, amounting to as much as $330 million over the next three years in an eight state area. The other three similar solicitations contain similar dollar values and apply to similarly extensive geographic areas.
The protest seeks an injunction to prevent the Corps of Engineers from proceeding with the solicitation because of our contention that it is unduly restrictive of competition; it violates the laws prohibiting “bundling” by unlawfully consolidating smaller projects that would have been suitable for small business prime contracting; and, it illegally employs supplies and services indefinite delivery contracting methods under FAR 16.5 to procure large military complexes. There has been a growing outcry from both the small and large business construction communities in recent months regarding the expanded use by the Department of Defense of Indefinite Delivery/Indefinite Quantity solicitations to procure construction, seemingly ignoring the fact that indefinite delivery contracts are typically used to acquire supplies and services on a much smaller scale. It is our opinion that Single Award Task Order Contracts and Multiple Award Task Order Contracts are illegally limiting competition and that they may not be appropriately applied to the procurement of major construction projects.
It is also disturbing that the amount of construction work that is available for sealed bidding is declining to the point that many construction contractors are being closed out of the federal market. (See our earlier article). The use of sealed bidding provides the greatest opportunity for competition and ultimately results in the lowest prices to the government. This was confirmed by a recent decision of the Court of Federal Claims that held that sealed bidding was the preferred method for the procurement of maintenance dredging and shore protection work.
Although we cannot predict the outcome of the pending protest, we believe that it is important for the Court to review whether there is legal and rational basis for the use of the IDIQ format to procure major construction. The Corps of Engineers has indefinitely postponed the date for receipt of proposals while this matter is under consideration.
Corps of Engineers Conduct Found to be an "End Run" to a Judicial Order and Injunction on MATOC Solicitation
The Corps of Engineers responded to the recent Order of the United States Court of Federal Claims dated November 1, 2007, granting a permanent injunction against the issuance of a MATOC solicitation for dredging, by taking four proposed task orders included in the MATOC solicitation and reissuing them as separate negotiated procurements. (See the article posted on November 5, 2007). The Plaintiff, Weeks Marine, Inc., filed a motion asking the Court to find that the Corps of Engineers had violated the November 1 Order. Weeks argued that the injunction of the MATOC solicitation was based upon a finding that there was no legal or rational basis for the Corps to employ contracting by negotiation instead of sealed bidding. The re-issuance of those same projects as individual RFPs violated the spirit, intent, and the letter of the Court’s Order.
Weeks requested that the Court amend its November 1, 2007 Order to make it clear that the projects addressed by the task orders could only be procured by sealed bidding. Judge Thomas C. Wheeler of the United States Court of Federal Claims responded by issuing a new Order on November 16, 2007, stating that “. . . the Court must fashion a remedy to address an agency’s conduct that the Court regards as an ‘end run’ to a judicial order and injunction.” The Court decided to allow one of the four projects to proceed as an RFP because it involved dredging of the entrance channel to the Naval Submarine Base at Kings Bay, Georgia, and was considered to be urgent. The other three RFPs were not allowed to proceed as RFPs, however, because the agency “did not provide any legal or factual justification to use negotiated procurement methods.” The Court was also concerned about the Corps’ unilateral decision to attempt to circumvent the earlier injunction and stated that “the prudent approach would have been for Defendant to seek relief from the injunction to issue this solicitation, rather than for the agency to decide unilaterally that the injunction did not cover the proposed action.”
In the hearing that was conducted on November 15, 2007, the Judge reiterated that “if sealed bidding is not used for dredging contracts, you may as well read FAR Part 14 right out of the regulation. I mean, when else is it going to apply if not to dredging contracts?” The decision is a welcome recognition by the Court that sealed bidding is still the preferred method for procuring federal construction contracting, and the decision will hopefully help to stem the continuing move by the Corps of Engineers to unnecessarily employ IDIQ, MATOC, and contracting by negotiation in more of its construction procurements.