OMEGA WORLD TRAVEL, INC., v. USA

Filing 45

PUBLISHED OPINION: Reissued opinion originally filed on June 25, 2008. Signed by Judge Nancy B. Firestone. (jo)

O M E G A v. WORLD TRAVEL, USA INC.,

45o c . D

In the United States Court of Federal Claims
N o . 08-118C (F ile d : July 3, 2008)** * * O P I N I O N ORIGINALLY FILED UNDER SEAL ON JUNE 25, 2008 ******************* OMEGA WORLD TRAVEL, I N C ., P l a i n t i f f, v. T H E UNITED STATES, D efe n d a n t, and C W GOVERNMENT TRAVEL, I N C ., Defendant-Intervenor. ******************* * * * * * * * * * * * * * * * * * * * *

B id Protest; Federal Acquisition S tr e a m lin in g Act ("FASA"), Pub.L. N o . 103-355; FAR 16.505(a)(9); J u r is d ic tio n Limited to Challenge of S c o p e of Task Order; Procurement I n te g r ity Act, 41 U.S.C. § 423.

Bryant S. Banes, Houston, TX, for plaintiff. Sean D. Forbes, Houston, TX, of counsel. D o u g la s K. Mickle, U.S. Department of Justice, Washington, DC, with whom were J e ffr e y S. Bucholtz, Acting Assistant Attorney General and Director Jeanne E. Davidson, for d e f e n d a n t. John Caterini and Barbara Marvin, U.S. Department of Justice and Virginia S. G r e b a sc h , U.S. General Services Administration, of counsel. L a r s E. Anderson, Vienna, VA, for defendant-intervenor. Peter A. Riesen and Patrick R . Quigley, Vienna, VA, of counsel. OPINION F I R E S T O N E , Judge.

Dockets.Justia.com

T h is case comes before the court on motions by the defendant, the United States (" d ef e n d an t" or "government"), and by the intervenor, CW Government Travel, Inc. (" C W G T " ), to dismiss the plaintiff's complaint pursuant to Rule 12(b)(1) of the Rules of th e United States Court of Federal Claims ("RCFC") for lack of jurisdiction, or, in the a lte rn a tiv e , for judgment upon the administrative record pursuant to RCFC 52.1, and a m o tio n by the plaintiff, Omega World Travel, Inc. ("plaintiff" or "Omega"), for judgment u p o n the administrative record pursuant to RCFC 52.1. In its complaint, the plaintiff a ss e rts that the government improperly and in bad faith terminated two travel services c o n tra c ts between the plaintiff and the United States Department of Justice ("DOJ") with th e intention of transferring the services provided under the contracts to CWGT through tw o sub task orders issued under a master task order issued under a master Indefinite D e liv e r y Indefinite Quantity ("IDIQ") contract held by CWGT. The plaintiff also c o n ten d s that the services to be transferred to CWGT under the sub task orders materially d e p a rt from the scope of the master IDIQ contract under which the master task order was a w a rd e d to CWGT.1 Finally, the plaintiff asserts that the government released the

This case involves a series of competing and cascading government contracts that can be briefly described as follows: (1) CWGT was one of three entities awarded a master IDIQ contract for E-Gov Travel Services in 2003; (2) CWGT was awarded a master task order under the master IDIQ contract in 2007 to provide ETS to DOJ; (3) CWGT was issued sub task orders under the master task order in 2008 to provide additional travel services to DOJ; and (4) Omega provided travel services to DOJ first as a sub-contractor under the ETS master IDIQ contract and then under a task order issued under the Travel Services and Solutions master IDIQ contract.

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p la in tif f 's proprietary and confidential competitive information to CWGT in violation of th e Procurement Integrity Act, 41 U.S.C. § 423 (2000) ("PIA"). The government and CWGT both contend that the plaintiff lacks standing to c h a lle n g e the master task order or the sub task orders issued under the master task order b e c au s e the plaintiff did not compete for the master IDIQ contract in 2003 and was not e lig ib le to receive the master task order or sub task orders. The government further c o n te n d s that the plaintiff's breach of contract claims are barred by the Contract Disputes A c t, 41 U.S.C. §§ 601 - 613 (2000) ("CDA"), because the plaintiff failed to comply with th e mandatory exhaustion requirements of the CDA. In the alternative, the government a n d CWGT contend that the contracting officer's decision to award the master task order to C W G T is supported by the administrative record and that the master task order is within th e scope of the master IDIQ contract under which it was awarded. Finally, the g o v e rn m e n t asserts that the administrative record demonstrates that any communication b e tw e e n the government and CWGT did not violate the PIA. For the reasons set forth b e l o w , the government's motion is GRANTED, CWGT's motion is GRANTED, and the p l a in t if f 's motion is DENIED.2

In addition, the plaintiff's motion to supplement the administrative record is DENIED as moot. Any dispute regarding the documents sought by the plaintiff's original motion to supplement, filed on April 11, 2008, was resolved during the April 30, 2008 status conference. The proposed additions to the record that were included in the plaintiff's appendix to the plaintiff's counter-statement of facts, filed on May 16, 2008, are not relevant to the jurisdictional analysis or to the scope of the award and thus will not be considered by the court. See infra n.13.

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B A C K G R O U N D FACTS T h e following facts are not disputed unless otherwise noted. Executive branch a g e n cie s of the government obtain travel services for their employees through the General S e rv ic e s Administration ("GSA") under two main multiple award IDIQ contracts: the E - G o v Travel Services ("ETS") contract and the Travel Services Solutions ("TSS") S c h e d u le 599 contract. Def.'s Appendix ("DA") 02. Task orders issued under the TSS m a ste r IDIQ contract provide for traditional, non-web-based government travel services u tilizing travel-agent-assisted reservation and fulfillment services. Id. These services are o f te n referred to as Travel Management Center ("TMC") services and are provided by o n -s ite offices or call centers. Id. Task orders issued under the ETS master IDIQ contract re q u ire , in addition to TMC services, the capability for booking, ticketing, and on-line a u th o riz a tio n and vouchering services to be provided electronically through a self-service s ys te m . Id. The goal of the ETS is to provide a common government-wide, web-based service that applies world-class travel m a n a g em e n t practices to consolidate federal travel, minimize travel costs, and p ro d u c e superior customer satisfaction. In addition, ETS leverages s ta te -o f -th e -a rt technologies to streamline travel processes and deliver a trusted, e a s y to use, integrated travel management service to the desktop of every g o v e rn m e n t traveler. DA 010. W h en travel services are procured by an agency under the ETS master IDIQ c o n tra c t, TMC services can be provided by the ETS contractor, or by a separate TMC p ro v id e r, through one of two different approaches: the "accommodated" approach or the -4-

" e m b e d d e d " approach.3 The "accommodated" approach is used when an existing TMC, n o t in privity of contract with the ETS contractor, provides TMC services, and the ETS c o n tra c to r provides non-TMC services. DOJ AR 1074, 1076-77.4 The "embedded" a p p ro a c h is used when the ETS contractor or a contractor in privity of contract with the E T S contractor provides TMC services. Id. All executive branch agencies are currently

The E-Gov Travel Service Ordering Guide, last updated on November 15, 2007, provides as follows regarding the accommodation of TMCs: The ETS contracts were designed to ensure that the vast majority of travel management needs for Federal Agencies could be met within a single, consolidated environment. Accordingly, each ETS vendor solution offers comprehensive reservation and fulfillment services through both online and agent-assisted channels. The current contract structures should satisfy most Agency travel management requirements. Agencies that currently have contract commitments with TMCs outside of ETS may transition from their current TMC to ETS non-self service reservations and fulfillment as their contract commitments expire. Agencies with exceptional needs (e.g., unique business, location, or security requirements) or those agencies that elect to procure TMC services directly may wish to use non-ETS TMCs for agent-assisted services. . . . Accordingly, all ETS vendors are required to accommodate the services of TMCs under direct contract to Federal Agencies. Agencies should become familiar with the services provided by their non-ETS TMC to determine what services are being provided and which ETS line items correspond to those services before placing their ETS order. Agencies that use non-ETS TMCs must adhere to FTR requirements and need to use ETS for the remainder of their travel management functions. D A 014-015. Because this protest concerns both an IDIQ contract issued to CWGT by GSA and related task orders issued to CWGT by DOJ, the government submitted the administrative record in two portions. The administrative record concerning DOJ's issuance of the task orders to CWGT is referred to as "DOJ AR" and the administrative record concerning the GSA master IDIQ contract is referred to as "GSA AR." -54

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re q u ire d by the Federal Travel Regulations ("FTR") to obtain travel services through ETS u n le ss an agency has been granted an exception.5 DA 01. All ETS contracts are awarded th ro u g h a government-wide acquisition contract ("GWAC"). Id. In November 2003, GSA awarded three competitively-bid ETS master IDIQ c o n tra c ts to CWGT, Electronic Data Systems Corp. ("EDS"), and Northrop Grumman M is s io n Systems ("Northrop Grumman"). DA 05. The scope of CWGT's ETS master ID IQ contract ("master IDIQ contract") is set forth in section C of the contract, which provides: T h is contract is for an end-to-end travel management service that is owned, h o s t e d , and operated by [CWGT] and is provided to the Federal Government v ia a web portal environment. The [ETS] is intended to permit agencies to p e rf o rm all aspects of official travel management online with processes and p r o c e d u r e s consistent with applicable travel regulations and policies. Id . The master IDIQ contract specifically requires that CWGT have the ability to provide trad ition al TMC services, or to accommodate an existing TMC provider: T h e [CWGT] [ETS] Solution is fully capable of accommodating and in c o rp o ra tin g the services of existing TMCs under contract or task order to F e d e ra l Agencies for the purpose of making travel reservations as authorized u n d e r that contract/task order. The [CWGT] [ETS] Solution will be responsible f o r delivering the reservation services detailed in the Statement of Work,

FTR § 301-73.100 provides that "unless [an agency has] an exception to the use of the [ETS] (see §§ 301-73.102 and 301-73.104), [it] must have fully deployed the [ETS] across [the] agency and require employees to use the [ETS] for all temporary duty travel no later than September 30, 2006." FTR § 301-73.104 requires that, if an agency seeks an agency-wide exception from the [ETS] requirement, the agency must present a "business case analysis" to demonstrate that the agency's current Travel Management System . . . is a better value." FTR § 301-73.104(a)(1).

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w h e th e r provided through [ETS], FedTripTM and/or the TMC under contract to the Federal agency. Id . In 2004, DOJ awarded a task order to EDS under its ETS master IDIQ contract for th e provision of end-to-end, comprehensive travel management services. DOJ AR 1053. Although Omega did not submit a bid to GSA for an ETS master IDIQ contract, DA 0 3 -0 4 , under the master IDIQ contract held by EDS, Omega provided on-site TMC s e rv ic e s to DOJ as an "embedded" TMC in privity of contract with EDS. DOJ AR 1074. In 2005, DOJ terminated its contract with EDS for convenience, but continued to receive o n -s ite TMC services from Omega by issuing task orders to Omega under the TSS master ID IQ contract through DOJ Contract Nos. DJJ05F1183 and DJJ05G1270. Id. On March 14, 2006, DOJ issued Request for Quotation ("RFQ") DJJD06RFQ0387, title d "E-Gov Travel Service," with the goal of awarding "a Tailored Master Task Order b e tw e en the [DOJ] and one of the qualified [GSA] [ETS] Contractors. The DOJ's ETS s o lu tio n shall meet the functional, technical and security needs of the DOJ travel c o m m u n ity and support the Department's mission." DOJ AR 677 (emphasis added). The R F Q was issued to the two remaining ETS master IDIQ contractors, Northrop Grumman a n d CWGT.6 DOJ AR 164. The RFQ incorporated the terms and conditions of the ETS m a ste r IDIQ contract. DOJ AR 678. The RFQ identified the following ETS travel As noted above, the third ETS master IDIQ contractor, EDS, was terminated for convenience in 2005, and therefore did not receive the RFQ.
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f u n c tio n s required by DOJ to be included in the proposals: (1) travel planning and cost e stim a tio n ; (2) travel creation and approval workflow documentation; (3) reservation b o o k in g and fulfillment services; (4) filing, processing, and workflow approval of travel c la im s ; (5) interface with DOJ business systems; and (6) reporting and data exchange. Id. The RFQ also identified the following additional travel services that would be required by D O J : (1) federal travel processes and travel management expertise; (2) web-based re se rv a tio n service; (3) training; (4) implementation and integration planning and support; (5 ) travel workflow creation with protected user roles; (6) customer support including ETS f u n c tio n a l and technical support for related integration issues; and (7) DOJ-specific re q u ire m e n ts and objectives. Id. In addition, the RFQ indicated that, at that time, DOJ was using a TMC, Omega, for c e rta in travel services under a task order that was procured through GSA's TSS master ID IQ contract, and stated that "DOJ and its components intend to continue using the TSS T M C [Omega], requiring the E-Gov Travel Contractor to accommodate the TMC, if n ec essa ry. . . . DOJ and its components reserve the right to exercise the option to procure T M C services through the DOJ E-Gov Travel Master Task Order." DOJ AR 1053 (e m p h a s is added). In response to the RFQ, DOJ received proposals from the two ETS m a s te r IDIQ contractors to which the RFQ was issued: CWGT and Northrop Grumman. DOJ AR 164, 173, 189. Because Omega did not hold one of the ETS master IDIQ c o n tra c ts, Omega was not given notice of the RFQ, nor did Omega submit a proposal in

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re sp o n s e to the RFQ.7 After reviewing the two proposals, the contracting officer d e te rm in e d that CWGT's proposal offered the best value to the government, DOJ AR 1 7 0 - 1 8 8 , and on June 20, 2007, DOJ issued Task Order DJJ07G1554 ("master task order") to CWGT for "E-Travel Management Services." DOJ AR 17-125. The Executive Summary of the master task order awarded to CWGT provided: T h e DOJ requires an ETS that shall improve the Department's travel m a n a g em e n t processes and meet the Department's functional, technical, and s e c u rity requirements. The ETS shall, but is not limited to: Provide a w e b -b a s e d , self-service, end-to-end travel solution; Meet the Department's tra v e l services needs which include travel planning, cost estimation, travel a u th o riz a tio n creation, booking of travel reservations, travel fulfillment, f ilin g /p r o c e s s in g /a p p r o v a l of official travel claims and local travel; Supply tra v e l reporting and data exchange for the Department; Eliminate the need for h a r d copy travel documentation currently used at the DOJ. D O J AR 22. Regarding TMC services, the master task order stated: C u rre n tly, the DOJ uses a single [TMC] procured through the [TSS] schedule. D O J and its components intend to continue using the TSS TMC, requiring the E -G o v Travel Contractor to accommodate the TMC, if necessary. However, D O J and its components reserve the right to exercise the option to procure T M C services through the DOJ E-Gov Travel Master Task Order [the master tas k order]. The ETS contractor shall accommodate DOJ's TSS TMC with their so lut io n . The relationship between ETS and the accommodated TMC is very im p o rta n t and must be thoroughly understood. DOJ AR 37. The master task order also set forth the following personnel requirements: T h e Government anticipates that the work to be performed under this contract w ill involve access to sensitive but unclassified materials (otherwise known as "L im ited Official Use") and non-sensitive materials. . . . If a change in c las sif ica tio n occurs and the contractor personnel will require access to It is not disputed that Omega was not entitled to notice because it was not one of the ETS master IDIQ contractors. -97

c la ss if ie d information originated by or in the custody of the Department of J u s tic e , than [sic] such access shall be processed through the National Industrial S e c u rity Program. In general, services performed by Contractor personnel may f a ll within three "risk" categories as described below: (a) High Risk . . . (b) M o d e ra te Risk . . . (c) Low Risk (Non-sensitive) . . . . Work performed under th is contract will fall within one or more of the risk categories defined . . . a b o v e . As a result, the Contractor's personnel must undergo a background in v e stig a tio n . The type of background investigation required will be c o m m e n su ra te with the risk factor associated with the duties of each position.

D O J AR 47. The master task order further specified that, for planning purposes, the g o v e r n m e n t estimated that DOJ would require zero high risk positions, ten moderate risk p o s itio n s , and zero low risk positions, and that three of the ten moderate risk positions w o u ld need Top Secret clearances due to the "nature of information possessed by the law e n f o rc e m e n t components within DOJ." DOJ AR 48. The master task order included C o n tra c t Line Item Numbers ("CLINs") to allow for the ordering of "Supplemental S e c u rity Services" (CLINs 0028, 0048, and 0068) and "Non-Self Service," or TMC, travel a s s is ta n c e (CLINs 0020AC, 0020AD, 0020AE, 0040AC, 0040AD, 0040AE, 0060AC, 0 0 6 0 A D , and 0060AE). DOJ AR 13-15. O n August 24, 2007, CWGT offered to discount its fees if DOJ used CWGT for its T M C services instead of requiring CWGT to accommodate Omega as the TMC provider. DOJ AR 1077, 1101-02. Shortly thereafter, in September 2007, the Omega task orders w e re modified, through Modification 001 to Master Order DJJ05F1183 and Modification 0 0 3 to Master Order DJJ05G1270, to extend the period of performance of TMC services b y Omega through September 30, 2008. DOJ AR 1068, 1070. The Modifications,

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h o w e v e r , also included a provision reserving the government's right to terminate the task o rd e rs upon providing Omega with at least 45 days' written notice. Id. In a September 6, 2 0 0 7 email from DOJ to Omega notifying Omega of the extensions to its task orders, DOJ a lso stated: "DOJ plans to use the e-travel imbedded [sic] TMC approach as opposed to u s in g the accommodated TMC approach. This means that we will likely not be re -c o m p e tin g the TMC services for DOJ next year." DOJ AR 1071. Omega confirmed th is plan in an email from Goran Gligorovic, Executive Vice President, on September 6, 2 0 0 7 , asking, "Does this mean that as of September of next year DOJ is planing [sic] to sw itch all travel services to [CWGT]?" DOJ AR 1072. DOJ's Contracting Officer, C o n n ie Simmons, responded on September 10, 2007, stating: "Our choices are to either re c o m p e te the TMC services among the GSA TMC providers (accommodated) or go w/the e m b e d d e d TMC. Right now our plan is to go w/the embedded TMC [CWGT]. The s w itc h will not happen all at once I don't believe." Id. DOJ did not, however, confirm that th e switch would not occur until September 2008. In evaluating CWGT's offer to discount its costs, sometime in the fall of 2007 DOJ p e rf o rm e d a limited cost analysis, DOJ AR 1073, 1098-1100, and decided to transition its T M C services from Omega to CWGT, or from the "accommodated" approach to the " e m b e d d e d " approach, with a goal of completing the transition by mid-2008. DOJ AR 1 0 8 7 . In a November 6, 2007 email, CWGT was notified of DOJ's decision to transition its TMC services to CWGT. Id. In that email, the Contracting Officer stated that DOJ

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h o p e d "to issue sub-task orders approximately 60 days prior to transition to [CWGT] . . . th e target date established for having the TMC Services for all components/Bureaus im p le m e n te d is June 30, 2008." Id. On November 7, 2007, the master task order was m o d if ie d to reflect the discounted pricing.8 DOJ AR 1088-1090. On January 9, 2008, D O J issued two task orders, DJJ1554-0001 and DJJ1554-0002, to CWGT ("sub task o rd e rs " ) that effectively transferred responsibility for TMC services to CWGT. DOJ AR 1 -4, 1051. On February 15, 2008, DOJ, pursuant to the Modifications to the task orders h e ld by Omega, issued 45 days' written notice to Omega of its intent to terminate Omega's ta s k orders by close of business on March 30, 2008. DOJ AR 1095. Omega alleges that, in the fall of 2007, "two [CWGT] representatives walked into O m e g a 's on-site office escorted by DOJ personnel, unannounced and uninvited, and a d v is e d Omega's two on-site employees that [CWGT] was taking over the account" and a tte m p te d to recruit the Omega employees. DOJ AR 1045, 1055. The government agrees th a t a DOJ representative escorted CWGT employees to Omega's on-site office in the fall o f 2007, but asserts that the visit "was not to facilitate [CWGT's] recruitment of Omega e m p lo ye e s, but [to] allow [CWGT] to determine what equipment [CWGT] might need to a c q u ire to provide embedded TMC services" to DOJ. DOJ AR 1056. Omega further

The Modification increased the unit prices for CLINs 0020AA, 0020AC, and 0020AD, which covered Self-Service Domestic and International Travel by air or rail and Non-Self Service Domestic and International travel by air or rail. DOJ AR 1090. The Modification also reflected the discount to be provided by CWGT, stating that "[i]n every month that [CWGT] is providing the DOJ TMC services, [CWGT] will discount the Implementation milestone payment invoice submitted in that month by 13.6%." Id. -12-

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a lleg e s that, on January 18, 2008, a CWGT employee "showed up on-site, again u n a n n o u n c e d , and began the recruiting process" by asking the on-site employees to c o m p le te applications and agree to be interviewed. DOJ AR 1045. The government c o n te n d s that DOJ had no involvement in the January 18, 2008 visit. DOJ AR 1056. O m e g a finally contends that DOJ provided CWGT with the names, phone numbers, staff p o sitio n s, and locations of Omega employees. DOJ AR 1046. The government admits th a t DOJ provided CWGT with phone numbers for the following Omega personnel on S e p te m b e r 20, 2007: Phil Downs, Alneta Williams, Annette Frazier, and J.T. Gibbs. DOJ A R 1056. The government asserts that these phone numbers are not confidential and are a v a ila b le on publicly accessible websites. Id. O n February 1, 2008, Omega filed a "pre-award agency-level protest" with DOJ, c h a lle n g in g DOJ's decision to transition its TMC services from Omega to CWGT. DOJ A R 1044-49, 1051. First, Omega alleged that DOJ disclosed Omega's confidential and p ro p rie ta ry information to CWGT in anticipation of the transition in violation of the PIA. Furthermore, Omega alleged that the manner by which DOJ proposed to transition TMC s e rv ic e s to CWGT violated the Competition in Contracting Act ("CICA"), 41 U.S.C. § 253 (1 9 8 4 ), because the proposed contract modifications materially departed from the scope of th e original procurement of CWGT's master IDIQ contract. Specifically, Omega argued th a t it is able to provide classified travel services for DOJ's Witness Protection Program w h ic h are outside the scope of CWGT's master task order and master IDIQ contract.

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F in a lly, Omega challenged the fairness of the overall solicitation process for government tra v e l contracts, alleging that CWGT has an unfair competitive edge in pricing due to its lar g e presence in the government travel market. T h e Agency Protest Official, Wilson L. Silvis, Deputy Assistant Director, P r o c u re m e n t Policy and Review Group, interpreted Omega's protest as a challenge to the a w a rd of the sub task orders to CWGT in 2008. DOJ AR 1051. Mr. Silvis reviewed O m e g a 's protest and denied it on March 6, 2008, DOJ AR 1051-58, holding that Omega's p ro te s t was not timely and that Omega was not an interested party to the procurement. DOJ AR 1052-54. Specifically, Mr. Silvis determined that, because Omega did not hold a n ETS master IDIQ contract, "Omega therefore did not, and in fact could not have, p a r tic ip a t e d in the procurement process that resulted in the issuance of the [master task o rd e r] to [CWGT] or the task orders issued under the [master task order]. . . . Omega is not e lig ib le to receive an award under the ETS contract because Omega is not one of the ETS c o n tra c to rs ." DOJ AR 1055. Mr. Silvis also determined that Omega's challenge could not p ro p e rly be construed as a "pre-award" protest, because the sub task orders were issued to C W G T on January 9, 2008, and that its challenge to the award of the sub task orders was n o t timely as a post-award protest because it was not filed within ten days of the award as r e q u ir e d by 48 C.F.R. § 33.103(e). DOJ AR 1053. Mr. Silvis further held that, because O m e g a was aware as early as September 2007 that DOJ had awarded the master task order to CWGT and intended to transfer its TMC services to CWGT, any challenge to the award o f the master task order should have been made at that time. DOJ AR 1054. -14-

In response to Omega's allegations that DOJ improperly disclosed Omega's p rop rietary information, Mr. Silvis determined that "there has been no improper disclosure o f proprietary information or other wrongdoing." DOJ AR 1056. Mr. Silvis found that a n y information provided by DOJ to CWGT about Omega was public information and was n o t confidential, and that DOJ had not been involved in any way in CWGT's attempts to re c ru it Omega's employees. Id. Finally, Mr. Silvis determined that Omega's allegation th a t the task orders awarded to CWGT fell outside the scope of the ETS contract was w ith o u t merit, finding that "the services offered by ETS, including the security re q u ire m e n ts, are broader than the services offered by TSS. Indeed, the TSS contract is lim ite d to TMC services, while the purpose of the ETS is to provide complete, end-to-end tra v e l services, including TMC." DOJ AR 1057. O n February 29, 2008, Omega filed the instant "pre-award" bid protest complaint. In its complaint, Omega challenges the award of the master task order to CWGT, the te rm in a tio n of Omega's contracts with DOJ for the provision of TMC services, and DOJ's c o m p lia n c e with the PIA. The court granted CWGT's motion to intervene on March 19, 2 0 0 8 , and on March 31, 2008, the government filed a motion to dismiss, or, in the a lte rn a tiv e , a motion for judgment upon the administrative record. On April 11, 2008, O m e g a filed a motion to supplement the administrative record. On April 15, 2008, CWGT f ile d a motion to dismiss, or, in the alternative, a motion for judgment upon the a d m in is tra tiv e record. On April 15, 2008, Omega filed a cross-motion for judgment upon

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th e administrative record.9 Following receipt of all response and reply briefs, oral a rg u m e n t was heard May 30, 2008. D IS C U S S IO N I. I n t r o d u c tio n In its complaint, Omega alleges that: (1) DOJ's decision to transition its TMC se rv ice s from Omega to CWGT by awarding the sub task orders violates CICA because it d id not utilize full and open competition and because the master task order under which th e sub task orders were awarded is outside the scope of the master IDIQ contract; (2) D O J 's decision to terminate Omega's task orders violated its implied duty of good faith and f a ir dealing; and (3) DOJ disclosed Omega's proprietary information to CWGT in violation o f the PIA and the Trade Secrets Act, 18 U.S.C. § 1905 (2000). Compl. ¶ 24-26. The government and CWGT have moved to dismiss Omega's complaint pursuant to R C F C 12(b)(1) for lack of subject matter jurisdiction, arguing that (1) Omega lacks sta n d in g to allege that the government acted in bad faith when it terminated the contracts b e tw e e n Omega and DOJ; and (2) Omega lacks standing to challenge the master task order a n d the sub task orders awarded to CWGT. In the alternative, the government and CWGT h a v e moved for judgment upon the administrative record, arguing that the master task

On May 27, 2008, the government filed a notice of objection to the plaintiff's counterstatement of facts and its exhibits and a motion to strike those portions of the plaintiff's briefs relying on its facts and exhibits. Because no portion of the plaintiff's counter-statement of facts or exhibits that is not also included in the administrative record is relevant to the jurisdictional analysis or to the scope of the award, the court does not rely on these materials, and the government's motion is DENIED as moot. See infra n.13. -16-

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o rd e r awarded to CWGT was within the scope of the master IDIQ contract and was th e re f o re properly issued to CWGT. The government also asserts that its actions did not v iolate the PIA, the Trade Secrets Act, or any other procurement statutes or regulations. In re sp o n s e , Omega has also moved for judgment upon the administrative record, arguing f irs t that the government was required to conduct a best value analysis before making the d e c is io n to transition its TMC services from the "accommodated" approach to the "e m b e d d e d " approach and second that the master task order and sub task orders issued to C W G T contemplate services outside the scope of the master IDIQ contract. Each of these a rg u m e n ts will be addressed in turn. II. O m e g a 's Standing to Challenge DOJ's Actions A. S t a n d a r d of Review

T h e government and CWGT have moved to dismiss Omega's claims under RCFC 1 2 (b )(1 ) for lack of subject matter jurisdiction. Both parties argue that Omega lacks s ta n d in g to challenge the award of the task orders to CWGT because Omega is not an in te re ste d party that was substantially prejudiced by the alleged errors in the procurement p ro c e ss . Furthermore, both parties contend that the court lacks jurisdiction to hear O m e g a 's "bad faith termination" claims regarding its contracts with DOJ because Omega d id not comply with the mandatory exhaustion requirements set forth by the CDA, 41 U .S .C . §§ 605(a) - (c), which requires a contractor to submit any contract-related claims a g a in s t the government to the contracting officer before filing a claim with this court.

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In considering a motion under RCFC 12(b)(1) to dismiss for lack of subject matter ju ris d ic tio n , the court is generally "obligated to assume all factual allegations to be true a n d to draw all reasonable inferences in plaintiff's favor." Henke v. United States, 60 F.3d 7 9 5 , 797 (Fed. Cir. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The u ltim a te burden, however, is on the plaintiff to prove that the court has jurisdiction to hear its claims. See, e.g., Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991) ("A p a rty seeking the exercise of jurisdiction in its favor has the burden of establishing that s u c h jurisdiction exists."). Standing is a matter of jurisdiction, and a bid protestor in v o k in g the jurisdiction of this court must establish its standing to do so. See, e.g., Rex S e rv . Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006); Myers Investigative & S e c . Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002); A&D Fire Prot., In c . v. United States, 72 Fed. Cl. 126, 131 (2006). The portion of the Tucker Act that c o n f e r s jurisdiction upon this court to hear bid protest claims provides: B o th the Unites [sic] States Court of Federal Claims and the district courts of th e United States shall have jurisdiction to render judgment on an action by an in te re ste d party objecting to a solicitation by a Federal agency for bids or p ro p o s a ls for a proposed contract or to a proposed award or the award of a c o n tra c t or any alleged violation of statute or regulation in connection with a p ro c u re m e n t or a proposed procurement. Both the United States Court of F e d e ra l Claims and the district courts of the United States shall have ju risd ictio n to entertain such an action without regard to whether suit is in s titu te d before or after the contract is awarded. 2 8 U.S.C. § 1491(b)(1) (2000) (emphasis added). The Federal Circuit has defined the term "in ter e ste d party" as an "actual or prospective bidder[] or offeror[] whose direct economic

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in t e re s t would be affected by the award of the contract or by failure to award the contract." Rex Serv. Corp., 448 F.3d at 1307 (quoting American Fed'n of Gov't Employees v. United S tates, 258 F.3d 1294, 1298 (Fed. Cir. 2001)). B. Omega Lacks Standing to Assert A Breach of Contract Claim.

In its complaint, Omega alleges that DOJ "improperly and in bad faith" terminated th e task orders under which Omega provides TMC services to DOJ. Compl. ¶ 4. The g o v e r n m e n t contends that Omega's challenge of DOJ's decision to terminate the task o rd e rs is not properly before the court, asserting that Omega did not comply with the m a n d a to ry exhaustion requirements of the CDA. While this court has jurisdiction under th e Tucker Act1 0 to consider claims for breach of contract arising under the CDA, the CDA re q u ire s contractors to comply with specific requirements before filing suit in this court. Specifically, the CDA requires that "[a]ll claims by a contractor against the government re la tin g to contract shall be in writing and shall be submitted to the contracting officer for a decision." 41 U.S.C. § 605(a). "[T]o gain a jurisdictional foothold in this court, a

10

The Tucker Act states:

The Court of Federal Claims shall have jurisdiction to render judgment upon any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, including a dispute concerning termination of a contract, rights in tangible or intangible property, compliance with cost accounting standards, and other nonmonetary disputes on which a decision of the contracting officer has been issued under section 6 of that Act. 28 U.S.C. § 1491(a)(2) (2000).

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p la in tif f pursuing a contract claim must satisfy two fundamental jurisdictional re q u ire m e n ts ­ it must submit a claim for money presently due and must obtain a 'final d e c is io n ' on the claim, either actual or deemed." Witherington Constr. Corp. v. United S ta te s, 45 Fed. Cl. 208, 211 (1999). The Federal Circuit has accepted the definition of the te rm "claim" set forth by the Federal Acquisition Regulations ("FAR") 33.201, 48 C.F.R. § 3 3 .2 0 1 , as "a written demand or written assertion by one of the contracting parties seeking a s a matter of right, the payment of money in a sum certain, the adjustment or in te rp re ta tio n of contract terms, or other relief arising or relating to the contract." See, e .g ., England v. The Swanson Group, Inc., 353 F.3d 1375, 1379 (Fed. Cir. 2004); James M . Ellet Const. Co., Inc. v. United States, 93 F.3d 1537, 1542 (Fed. Cir. 1996); R e f le c to n e , Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc). The government contends that Omega did not conform with the requirements of the C D A , asserting that Omega did not submit a claim to the contracting officer, and did not re q u e st or obtain a final decision from the contracting officer regarding its claim. Omega c o n c ed e s that it has not yet filed a claim with the contracting officer as required by the C D A . However, Omega contends that its allegations that DOJ terminated its task orders in b a d faith are still relevant to its bid protest, because DOJ's decision to terminate Omega's ta sk orders and to award task orders covering similar services to CWGT violated the im p lied duty of good faith and fair dealing. Omega argues that this assertion is relevant to th e propriety of DOJ's actions.

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T h e court agrees with the government that Omega's claim of bad faith termination is not properly before the court and should be dismissed for lack of subject matter jurisd iction . Omega did not submit a claim alleging bad faith to the contracting officer, a n d thus did not comply with the jurisdictional requirements set forth by the CDA. Whether Omega's allegations of bad faith are relevant to the propriety of DOJ's decision to a w a rd the task orders to CWGT will be addressed in the court's consideration of the merits o f Omega's claim. C. Omega Has Standing to Allege that the Master Task Order Exceeds the S co p e of the Master IDIQ Contract.

A party can typically challenge a task order issued under an IDIQ master contract o n ly under very limited circumstances, as outlined by the Federal Acquisition Streamlining A c t of 1994 ("FASA"), Pub.L. No. 103-355, 108 Stat. 3243 (1994), and implemented by th e FAR. The goal of FASA was to streamline the bid protest process: "The revised c o n tra c tin g procedures and the new, accelerated notice of contract awards, contract d e b rie f in g s , and bid protest are all designed to reduce staff time, lessen the amount of p a p e rw o rk required, and shrink the bureaucracy." 140 Cong. Rec. H9240, H9245 (1994). "In particular, when a procurement envisioned a multiple award IDIQ contract, creating, th ro u g h competition, a pool of contractors for certain work projects, the issuance of ind ividu al task orders to these contractors would not be subject to protests." A&D Fire P r o t., 72 Fed. Cl. at 133 (citing Pub.L. No. 103-355, § 1054). "Task or delivery order c o n tra c ts 'essentially create a menu of goods or services of an indefinite quantity that can -21-

b e ordered by an agency on an as needed basis.'" Savantage Fin. Servs., Inc. v. United S ta te s, 81 Fed. Cl. 300, 307 (2008) (quoting Corel Corp. v. United States, 165 F.Supp.2d 1 2 , 20 (D.D.C. 2001)). If "the task order or delivery order contract itself has been o b ta in e d through full and open competition," id., a protest of a task order issued under an ID IQ contract is only authorized if it alleges that a task order "increases the scope, period, o r maximum value of the [master IDIQ] contract under which the order is issued." 41 U .S .C . § 253j(d) (emphasis added); see also FAR 16.505(a)(9). It is against this backdrop th a t the court will examine Omega's challenge to the task orders at issue. 1. O m e g a May Challenge the Scope of the Master Task Order.

In its complaint, Omega alleges that the services to be provided by CWGT under th e protested task orders materially depart from the scope of the ETS master IDIQ contract h e ld by CWGT, and Omega therefore contends that the award of the task orders to CWGT v io la te d CICA. Compl. ¶ 4. Specifically, Omega contends that it currently provides DOJ w ith Witness Protection Program services that require the handling of restricted in f o rm a tio n and materials, and that the master task order only covers the handling of s e n s itiv e but unclassified materials. The government and CWGT contend that, while Omega does allege in its complaint that the master task order issued to CWGT exceeds the scope of its ETS master IDIQ c o n tra c t, even if Omega's allegation is true, the court still lacks jurisdiction over Omega's c h a l le n g e of the award of the master task order and the sub task orders to CWGT because O m e g a does not have standing to bring such a claim. They allege that Omega is not an -22-

in ter e ste d party to the award of either the master task order or the master IDIQ contract to C W G T because Omega was neither an actual nor a prospective bidder and thus was not e lig ib le to receive the master task order or the subsequent sub task orders. It is not d is p u te d that Omega did not submit a proposal in response to the RFQ under which the m a ste r task order was awarded to CWGT in 2007. Furthermore, it is not disputed that O m e g a was not eligible to submit a proposal because the RFQ was issued only to the p rim e contractors in GSA's ETS program who were awarded an ETS master IDIQ contract in 2003, and Omega was not awarded and did not compete for an ETS master IDIQ c o n tra c t in 2003. Omega asserts that it is nonetheless an interested party and has standing to protest the award of the master task order because "a grant of the relief requested would require d is q u a lif ic a tio n of [CWGT], and necessitate Plaintiff's maintaining performance of the se rv ice s at issue until solicitation of those services via a competitive bid process in c o m p lian c e with procurement statute and regulation, FAR and CICA requirements is co m p leted ." Compl. ¶ 7. Furthermore, Omega contends that because the sub task orders w ill require CWGT to provide services that fall outside the scope of the master IDIQ c o n tra c t, and therefore were not properly awarded to CWGT, DOJ will have to procure its T M C services through a new contract, for which Omega could and would compete. Accordingly, Omega argues that it has standing to allege that the master task order was not p ro p e rly awarded to CWGT.

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T h e court agrees with Omega that it does have standing, under 41 U.S.C. § 253j(d) a n d FAR 16.505(a)(9), to allege that the services required under CWGT's master task o rd e r exceed the scope of the master IDIQ contract. Omega's standing is based on the fact th a t it is a potential recipient of a contract to provide TMC services to DOJ. This court has h e ld that, "[w]here a claim is made that the government violated CICA by refusing to e n g a g e in a competitive procurement, . . . 'it is sufficient for standing purposes if the p la in tif f shows that it likely would have competed for the contract had the government p u b lic ly invited bids or requested proposals.'" Savantage, 81 Fed. Cl. at 306 (quoting CCL, In c . v. United States, 39 Fed. Cl. 780, 790 (1997)). "To have standing, the plaintiff need o n ly establish that it 'could compete for the contract' if the bid process were made c o m p e t itiv e ." Myers Investigative & Sec. Servs., 275 F.3d at 1370-71 (quoting Impresa C o n stru zion i Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2 0 0 1 )). Omega has sufficiently established that it likely would have competed for a c o n tra c t for TMC services had the contract been competitively bid; accordingly, Omega h a s standing to challenge the award of the master task order, and sub task orders, to C W G T for exceeding the scope of the master IDIQ contract. 2. O m e g a 's Challenge Is Limited to Its Allegation That the Master T a sk Order Exceeds the Scope of the Master IDIQ Contract.

O m eg a contends that, while FASA and the FAR do limit protests concerning IDIQ ta sk orders, such protests are not limited when an agency violates CICA or other p ro c u re m e n t statutes in deciding to award a task order under an IDIQ, and thus seeks to -24-

c h a llen g e the award of the sub task orders on the grounds that DOJ was required to u n d e rta k e a competitive procurement to obtain TMC services regardless of whether the T M C services it required were within the scope of the master IDIQ contract. Omega relies o n the holding in Weeks Marine, Inc. v. United States, 79 Fed. Cl. 22 (2007), in which the p ro tes to r, in a pre-award bid protest, challenged the government's decision to solicit p ro p o s a ls for dredging projects using IDIQ multiple award task order contracts, arguing th a t the change from competitive sealed bidding procedures, which were used historically in soliciting proposals for dredging projects, to IDIQ task orders was contrary to law and h a d no rational basis. Id. at 23. The protestor alleged that, in order to switch from sealed b id d in g to IDIQ task order contracting, the government would have to satisfy 10 U.S.C. § 2 3 0 4 (a ), which requires the use of sealed bidding when the conditions set forth in 10 U .S .C . § 2304(a)(2) are met. The court held that, because the government did not identify a n y significant changes that would justify the switch to IDIQ task order contracting, and b e c au s e the administrative record did not contain any analysis of 10 U.S.C. § 2304, the g o v e rn m e n t's decision to use IDIQ task orders was made in violation of law. Id. at 30. T h e government and CWGT assert that Omega's reliance on Weeks Marine in s u p p o rt of its argument is misplaced. As set forth above, Weeks Marine dealt with a ch allen g e to an agency's decision to utilize IDIQ task order contracting to procure d re d g in g services in the first instance. The parties contend that, in the instant protest, O m eg a is not challenging DOJ's decision to utilize IDIQ task order contracting to procure

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tra v e l services. The parties argue that this decision was made by DOJ in 2003 when it s o lic ite d and awarded three master IDIQ contracts to CWGT, Northrop Grumman, and E D S , and any objection to that decision should have been made at that time. See Blue & G o ld Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) ("[A] party who h a s the opportunity to object to the terms of a government solicitation containing a patent e r ro r and fails to do so prior to the close of the bidding process waives its ability to raise th e same objection subsequently in a bid protest action in the Court of Federal Claims."). The court agrees with the government and CWGT that Weeks Marine is not re le v a n t to Omega's protest. Weeks Marine dealt with a challenge to an agency's initial d e c isio n to utilize IDIQ task order contracting to procure necessary services. Omega did n o t, in 2003, protest DOJ's decision to procure travel services through IDIQ task order co n trac tin g . Instead, Omega's current protest challenges DOJ's decisions in 2007 to award a master task order to CWGT and in 2008 to award sub task orders to CWGT under the m a ste r IDIQ contract CWGT received in 2003.1 1 Challenges to a task order awarded

CWGT contends that, under Blue & Gold, Omega's challenge of the task order awards to CWGT in 2007 and 2008 is untimely. CWGT asserts that, because Omega did not protest DOJ's decision to issue an RFQ for the master task order under the master IDIQ contract in 2006, and did not protest DOJ's decision to issue the sub task order to CWGT in 2008, Omega is barred from raising such claims now. CWGT contends that Omega should have protested the RFQ issued under the master IDIQ contract by DOJ in 2006, before the master task order was awarded to CWGT. However, Omega did not receive the RFQ from DOJ because Omega was not a master IDIQ contractor, so Omega did not have notice of the RFQ before CWGT was awarded the master task order. CWGT further contends that Omega should have protested DOJ's decision to switch from the accommodated TMC approach to the embedded TMC approach when it received notice, via email, of that decision in 2007. However, while the email Omega received from DOJ indicated that DOJ planned, at some point in the future, to possibly -26-

11

u n d e r a master IDIQ contract are limited by FASA to allegations that the task order in c re a se s the "scope, period, or maximum value of the contract under which the order is is s u e d ." 41 U.S.C. § 253j(d); A&D Fire Prot., 72 Fed. Cl. at 133; Phoenix Air Group, Inc. v . United States, 46 Fed. Cl. 90, 105 (2000). Accordingly, Omega's challenge of the task o rd e rs at issue in this case is limited to its allegations that the task orders exceed the scope o f the ETS master IDIQ contract to include services not contemplated by the master IDIQ c o n tra c t, and the court will consider the merits of this claim. All other allegations made by O m e g a challenging the award of the task orders are barred by FASA and may not be c o n sid e re d by this court. III. T h e Government and CWGT Are Entitled to Judgment Upon the A d m in is tr a tiv e Record. A. S t a n d a r d of Review

This court has jurisdiction, pursuant to 28 U.S.C. § 1491(b), "to render judgment on a n action by an interested party objecting to a . . . proposed award or award of a contract." 28 U.S.C. § 1491(b)(1). The court must review the contracting agency's decision pursuant

switch from the accommodated approach to the embedded approach, the email did not constitute an official DOJ procurement decision. Any protest by Omega in 2007 upon receipt of the email from DOJ would have been premature. Omega did not learn until January 25, 2008 that DOJ had officially decided to transition its TMC services from Omega to CWGT, and was not required to challenge the decision to issue the sub task orders before it received notice of that decision. See Allied Materials & Equip. Co., Inc. v. United States, 81 Fed. Cl. 448, 459 (2008) (holding that a protestor did not waive its right to challenge an amendment to a solicitation when it was not aware of the terms of the amendment). Accordingly, CWGT's contention that Omega's challenge that the master task order and sub task orders are out of scope is barred by Blue & Gold goes too far. -27-

to the standards set forth in the Administrative Procedures Act, 5 U.S.C. §§ 701-706 (2 0 0 0 ), which requires a court to "set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with th e law." 5 U.S.C. § 706(2)(A). See also Banknote Corp. of Am. v. United States, 365 F .3 d 1345, 1350-51 (Fed. Cir. 2004) (citing Advanced Data Concepts, Inc. v. United S ta te s , 216 F.3d 1054, 1057-58 (Fed. Cir. 2000)). The court "may not substitute its judgment for that of the agency" if the agency's d e c is io n is reasonable. R&W Flammann GmbH v. United States, 339 F.3d 1320, 1322 (F e d . Cir. 2003). However, the court may set aside an award if "the procurement official's d e c is io n lacked a rational basis; or . . . the procurement procedure involved a violation of re g u la tio n or procedure." Impresa Construzioni, 238 F.3d at 1332. An agency's decision sh o u ld be set aside if it "has relied on factors which Congress had not intended it to c o n sid e r, entirely failed to consider an important aspect of the problem, offered an e x p la n a t io n for its decision that runs counter to the evidence before the agency, or is so im p la u sib le that it could not be ascribed to a difference in view or the product of agency e x p e rtis e ." Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S.Ct. 2518, 2 5 2 9 -30 (2007) (quoting Motor Vehicle Mfrs. Ass'n. of United States, Inc. v. State Farm M u t. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). B. T h e Master Task Order Awarded to CWGT Under the ETS Master ID IQ Contract Did Not Exceed the Scope of the Master Contract.

O m e g a asserts that the master task order awarded to CWGT in 2007 exceeded the s c o p e of the master IDIQ contract under which it was awarded because, while the master -28-

I D I Q contract required the handling of sensitive but unclassified materials, the master task o rd e r, and the sub task orders issued in 2008, will require CWGT to handle more restricted in f o rm a tio n and materials. Specifically, Omega appears to allege that the TMC services p ro v id e d by Omega, including the Witness Protection Program services, are outside the s c o p e of the master IDIQ contract. In support of its contention, Omega points to the la n g u a g e of the E-Gov Travel Service Ordering Guide, which provides that agencies that h a v e exceptional business, location, or security requirements may wish to use non-ETS T M C s to acquire agent-assisted services. DA 014-015. Omega contends that the Ordering G u id e allows for the possibility of an agency requiring services beyond the scope of the E T S master IDIQ contract, which Omega argues is the case with the security services re q u ire d by DOJ. Omega also relies on the master task order estimate that DOJ would re q u ire zero high risk positions, DOJ AR 48, asserting that the actual security needs of D O J will exceed the estimates set forth by the master task order. Accordingly, Omega c o n te n d s that CWGT will likely be asked to perform security-related services that exceed th e scope of the master IDIQ contract. In response, the government and CWGT argue that, because CWGT's ETS master ID IQ contract required that CWGT have the capability to either accommodate an existing T M C provider or to provide traditional TMC services,1 2 the TMC services that CWGT is

12

CWGT's ETS master IDIQ contract states:

The [CWGT] [ETS] Solution is fully capable of accommodating and incorporating the services of exiting TMCs under contract or task order to Federal Agencies for the -29-

re q u ire d to provide under the master task order and the sub task orders, including any s e c u r ity services, were contemplated by the master IDIQ contract, and the award of task o rd e rs for those services under that contract was appropriate. Furthermore, the g o v e rn m e n t and CWGT assert that CWGT's master IDIQ contract provides for an "en d -to -en d travel management service," including traditional TMC services, and therefore th a t the master task order is clearly within the scope of the master IDIQ contract. CWGT's master IDIQ contract defines the scope of the contract as follows: T h is contract is for an end-to-end travel management service that is owned, h o s te d , and operated by [CWGT] and is provided to the Federal Government v ia a web portal environment. The [ETS] is intended to permit agencies to p e rf o rm all aspects of travel management online with processes and procedures c o n sis te n t with applicable travel regulations and policies. Travel management f u n c tio n s include, but may not be limited to, the following: (1) Travel planning a n d cost estimating; (2) Travel authorization; (3) Booking of reservations; (4) F ilin g , processing, and approval of official travel claims; (5) Reporting; data e x c h a n g e , etc.; and (6) Fulfillment services. G S A AR 17 (emphasis added). The RFQ issued by DOJ in 2006 for the task orders to be a w a rd e d under the master IDIQ contract did not specifically identify any additional s e rv ic e s to be performed that were not identified in the master IDIQ contract. See DOJ A R 678. The Executive Summary of the master task order awarded to CWGT in 2007

purpose of making travel reservations as authorized under that contract/task order. The [CWGT] [ETS] Solution will be responsible for delivering the reservation services detailed in the Statement of Work, whether provided through [ETS], FedTripTM and/or the TMC under contract to the Federal agency. GSA AR 33-34.

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provides: T h e DOJ requires an ETS that shall improve the Department's travel m a n a g em e n t processes and meet the Department's functional, technical, and s e c u rity requirements. The ETS shall, but is not limited to: Provide a w e b -b a s e d , self-service, end-to-end travel solution; Meet the Department's tra v e l services needs which include travel planning, cost estimation, travel a u th o riz a tio n creation, booking of travel reservations, travel fulfillment, f ilin g /p ro c e ss in g /ap p ro v a l of official travel claims and local travel; Supply tra v e l reporting and data exchange for the Department; Eliminate the need for h a r d copy travel documentation currently used at the DOJ. D O J AR 22. The government and CWGT contend that neither the RFQ nor the master ta sk order require CWGT to provide any services that were not within the scope of C W G T 's master IDIQ contract, and accordingly that the master task order was a p p ro p ria tely awarded to CWGT in 2007 and the sub task orders were appropriately a w a rd e d under the master task order in 2008. T h e court agrees with the government and CWGT that the services contemplated by th e master task order and the sub task orders awarded to CWGT were not outside the sco p e of the master IDIQ contract under which they were awarded. Omega's primary a rg u m e n t is that, once the TMC services are transitioned to CWGT, CWGT will be re q u ire d to perform additional services, currently performed by Omega, that were not c o n te m p la te d by the master IDIQ contract or any of the task orders issued to CWGT. However, Omega has not identified any duties required to be performed by the master task o rd e r or the sub task orders that fall outside the scope of the master IDIQ contract. Whether Omega currently performs services outside the scope of the master IDIQ contract

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is not relevant; the court must only examine whether the task orders awarded to CWGT re q u ire CWGT to perform services outside the scope of the master IDIQ contract. It is c le a r from the above-quoted portions of the master IDIQ contract and the master task order th a t CWGT is not being asked to perform any services not contemplated by the master ID IQ contract. Moreover, to the extent that DOJ might require additional services in the f u t u re for its Witness Protection Program that are not now included in the sub task orders, th e master IDIQ contract and master task order allow DOJ to obtain such services through th e CLINs for "Supplemental Security Services" and "Non-Self Service" travel assistance. DOJ AR 13-15. Accordingly, the task orders do not exceed the scope of the master IDIQ c o n tra c t, and Omega's challenge to the award of the task orders must be rejected. The g o v e rn m e n t and CWGT are entitled to judgment upon the administrative record.13

Omega also argues that when DOJ decided to transition its TMC services from the "accommodated" approach to the "embedded" approach, DOJ effectively decided to cancel the services that Omega was providing to DOJ without proper competition, and was required to undertake a competitive procurement and perform a thorough best value analysis before deciding to receive its TMC services from CWGT. Omega therefore alleges that the sub task orders awarded to CWGT under the master task order constituted improper sole source procurements. The goal of FASA, in allowing agencies to procure services through task or delivery order contracts, was to "streamline and simplify federal acquisition procedures." Corel Corp., 165 F.Supp.2d at 20. "[W]hen an agency makes an order pursuant to a task or delivery order contract, the agency is not required to publish a notice of solicitation nor is it required to hold a `competition . . . that is separate from that used for entering into the contract.'" Id. (quoting 41 U.S.C. § 253j(a)(2)) (emphasis added). The court has already determined that Omega's ability to challenge the task orders awarded to CWGT is limited by FASA and the FAR to allegations that the task orders exceeded the scope of the master contract under which they were awarded. The court has also determined that the task orders did not exceed the scope of the master contract. Accordingly, the court does not have authority under FASA to review Omega's challenge to the award of the sub task orders on the grounds that it was an illegal sole source procurement. -32-

13

C.

D O J Did Not Violate the Procurement Integrity Act or Any Other P r o c u r e m e n t Regulations.

In its complaint, Omega also alleges that the government interfered with Omega's b u s in e s s operations, shared confidential information regarding Omega's business o p e ra tio n s, and provided CWGT with the names of Omega's staff, including their c o n f id e n tia l staff positions, locations, contact information, and the accounts they service. Compl. ¶ 26. Omega contends that these actions by the government amount to "an im p ro p e r disclosure by [the government] of [Omega's] proprietary and source selection in f o rm a tio n pursuant to the PIA, as implemented by FAR § 3.104-3(a) and 3.104-4(b), and a violation of 18 U.S.C. § 1905." Id. T h e PIA governs the disclosure of contractor bid, proposal, or source selection in f o rm a tio n , and prohibits government representatives from "knowingly disclos[ing] c o n tra c to r bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates." 41 U.S.C. § 4 2 3 (a )(1 ) (emphasis added). The PIA defines "contractor bid or proposal information" as: [A]ny of the following information submitted to a Federal agency as part of or in connection with a bid or proposal to enter into a Federal agency procurement c o n tra c t, if that information has not been previously made available to the p u b lic or disclosed publicly: (A) Cost or pricing data . . . . (B) Indirect costs and d i re c t labor rates. (C) Proprietary information about manufacturing processes, o p e ra tio n s, or techniques marked by the contractor in accordance with a p p lic a b le law or regulation. (D) Information marked by the contractor as " co n tra c to r bid or proposal information", in accordance with applicable law or r e g u la tio n . 4 1 U.S.C. § 423(f)(1) (emphasis added). The PIA also prohibits any person from -33-

p ro te stin g an award or proposed award alleging a violation of the PIA "unless that person re p o rte d to the Federal agency responsible for the procurement, no later than 14 days after th e person first discovered the possible violation, the information that the person believed c o n s titu te s evidence of the offense." 41 U.S.C. § 423(g) (emphasis added). The government argues that Omega's allegations that the government violated the P I A are untimely, because Omega never presented information to DOJ that constituted e v id e n c e of the offense, as required by 41 U.S.C. § 423(g), and certainly did not present in f o rm a tio n to DOJ within 14 days of discovering the potential violation. Furthermore, the g o v e rn m e n t contends that, because any disclosure of information alleged by Omega o c c u rre d after DOJ issued the protested task order to CWGT, Omega's allegations do not, o n their face, meet the requirement of the PIA that information be knowingly disclosed b e f o re the award of the protested contract. While the government concedes that, on S e p te m b e r 20, 2007, it provided CWGT with telephone numbers for four Omega e m p lo ye e s , it asserts that the telephone numbers were also publicly available on DOJ's tra v e l website and other travel agency websites. The government argues that the in f o rm a tio n allegedly disclosed by the government, including the names of Omega's p e rs o n n e l and their phone numbers, does not constitute "contractor bid or proposal in f o rm a tio n " as defined by the PIA, and is not proprietary information because it is p u b lic ly available. See, e.g., McKing Consulting Corp. v. United States, 78 Fed. Cl. 715, 7 2 7 (2007) (finding that the names, contact information, and pay rates of consultants used

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b y a contractor were "not subject to PIA protection"); Synetics, Inc. v. United States, 45 F e d . Cl. 1, 14 (1999) (holding that personnel information did not meet the definition of "co n trac tor bid or proposal information" under the PIA).14 In its cross-motion, Omega did not address the PIA violations it alleged in its c o m p lain t, nor did it respond to the government's contention that its actions did not violate th e PIA. In its reply in support of its cross-motion, Omega merely reiterated its allegation th a t DOJ improperly disclosed Omega's proprietary and source selection information in c o n tra v e n tio n of the PIA, but did not provide any additional evidentiary support of its a lle g a tio n . The court agrees with the government that Omega's contention that DOJ violated th e PIA and disclosed Omega's proprietary information to CWGT is without merit.

In its complaint, Omega also alleges a violation of the Trade Secrets Act, 18 U.S.C. § 1905, a criminal statute that prohibits government officials from disclosing, among other things, confidential and trade secret information. The government contends that information that is publicly available is not a trade secret, Ruckleshaus v. Monsanto Co., 467 U.S. 986, 1002 (1984), and that the owner of a trade secret must take affirmative steps to prevent the disclosure of the secret to others. Id. The government asserts that, because the information disclosed by DOJ to CWGT was publicly available, and bec