Comptroller General

of the United States

United States Government Accountability Office

Washington, DC 20548 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to a 

GAO Protective Order. No party requested redactions; 

we are therefore releasing the decision in its entirety. 

Decision 

Matter of: Datamaxx Group, Inc.

File: B-400582 

Date: December 18, 2008 

Carla D. Craft, Esq., Maynard Cooper & Gale P.C., and Jerome S. Gabig, Jr., Esq., Law 

Office of Jerome S. Gabig, for the protester. 

Peter Jones, Esq., Transportation Security Administration; Kathleen D. Martin, Esq., 

and David B. Funk, Esq., Department of Homeland Security; and John W. Klein, Esq., 

and Laura Mann Eyester, Esq., Small Business Administration, for the agencies. 

Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, 

participated in the preparation of the decision. 

DIGEST 

Protest that agency improperly proposes to issue a task order under an 

indefinite-delivery/indefinite-quantity contract without considering a small business 

set-aside is dismissed as untimely where the protest was filed after the closing date 

for submission of proposals under the solicitation for the indefinitedelivery/indefinite-quantity contract, and the solicitation provided clear notice that 

its scope included the services under the task order. 

DECISION 

Datamaxx Group, Inc., doing business as Datamaxx Applied Technologies, Inc., of 

Tallahassee, Florida, a small business, protests the terms of task order request for 

proposals (Task Order RFP) No. HSTS07-08-R-00024 by the Transportation 

Security Administration (TSA) for software development services. The Task 

Order RFP was issued to vendors holding Enterprise Acquisition Gateway for 

Leading Edge Solutions (EAGLE) multiple award indefinite-delivery/indefinitequantity (ID/IQ) contracts; Datamaxx does not hold an EAGLE ID/IQ contract. As 

the incumbent small business software development contractor for these services, 

Datamaxx essentially challenges their inclusion under request for proposals 

No. HSHQDC-05-R-00010 (RFP), the EAGLE solicitation, and argues that these 

services must instead be procured as a stand-alone requirement and set aside for 

small businesses. 

We dismiss the protest. 
BACKGROUND 

The services being solicited by TSA are referred to as the Tactical Information 

Sharing System (TISS) Development and Migration Project. The TISS project allows 

for real-time reporting and analysis of suspicious events by law enforcement 

personnel, so that TSA can carry out its responsibility to protect the aviation system, 

its employees, and the public. Agency Report (AR) at 1. Under a TSA contract 

awarded on September 15, 2003, Datamaxx has designed and developed the TISS 

system by customizing commercial software. The contract would have expired on 

September 15, 2008, but was recently extended for 6 more months. TSA Response to 

Dismissal Request, Oct. 17, 2008, at 3. 

On September 29, 2005, the Department of Homeland Security (DHS) (of which TSA 

is a component) issued the EAGLE RFP. The RFP provided for DHS to award 

multiple ID/IQ contracts, and based on those contracts, multiple agencies1

 could 

issue fixed-price, cost-reimbursement, or time-and-materials labor hour task orders 

to EAGLE vendors for the “full range of IT [information technology] services, 

technical and management expertise, and solution-related enabling products”2

worldwide. RFP at 7. The EAGLE RFP provided for a guaranteed minimum order of 

$250 per contractor, and a “maximum cumulative dollar ceiling value of all 

contracts” of $45 billion. RFP at 29. 

The EAGLE RFP identified five functional categories (FC) as follows: 

FC1 -- Engineering Design, Development, Implementation and Integration 

FC2 -- Operations and Maintenance 

FC3 -- Independent Test, Evaluation, Validation and Verification 

FC4 -- Software Development 

FC5 -- Management Support Services 

RFP at 7. 

 1

 The EAGLE RFP provided that orders could be placed by DHS “and its 

Components, as well as other federal agencies in support of homeland security.” 

RFP at 16. However, the current ordering guide issued by DHS specifies that only 

DHS component agencies are authorized to use EAGLE. DHS EAGLE Ordering 

Guide (Sept. 2008) at 7. Since TSA is a component of DHS, the discrepancy has no 

impact on our resolution of the protest, and is noted only for sake of clarity. 

2

 The RFP noted that “[w]hile the Statement of Work identifies five functional 

categories, the suite of resulting contracts are intended to satisfy the full range of IT 

related requirements.” RFP at 7; see also RFP at 29 (in addition to services, contract 

is “structured to permit purchase of a full-range of electronic and information 

technology solutions”). 

Page 2 B-400582
The parties agree that FC4 is the only category relevant here.3

 The scope of FC4 was 

defined in the EAGLE RFP as follows: 

The Contractor shall provide any and all phases of software design and 

development including deployment to ensure DHS applications and 

databases will enable their users to meet their mission goals and 

objectives. These efforts include the full range of software design, 

development, implementation and integration, including, but not limited 

to, concept development, planning, requirements definition and 

analysis, systems design and development, coding and testing, 

production, deployment, implementation, integration, and software 

application maintenance. 

RFP at 9. 

The due date for initial proposals under the EAGLE solicitation was November 14, 

2005. DHS received 402 proposals. Datamaxx did not submit a proposal under the 

EAGLE RFP, nor did it object to the scope or terms of the RFP before the closing 

date for submission of proposals. On June 29, 2006, DHS announced awards to 

25 large businesses. A short time later, DHS awarded EAGLE contracts to 28 small 

businesses.4

 Of those, FC4 services are included in the EAGLE contracts of 7 of the 

small businesses, and 13 of the large businesses. AR, Tab 1, EAGLE Contractor List, 

Aug. 18, 2008, at 1-2. The EAGLE contracts provide for a base term of 5 years, 

followed by two 1-year option periods.5

 RFP at 2. 

In August 2007, the TSA requested--although not via issuance of a solicitation--that 

Datamaxx provide a technical proposal and pricing to develop an internet-based 

interface accessible on personal digital assistant (PDA) devices for submission of 

suspicious activity reports. Datamaxx responded with a proposal, and understood 

that this internet-based interface would replace the customized PDA interface that 

 3

 Although the record reflects that TSA also briefly considered placing TISS under 

EAGLE Functional Category 1, none of the parties has argued that FC1 is relevant to 

our decision. 

4

 DHS explains that the small business awards were made separately because it 

conducted the EAGLE procurement on separate “tracks” for the unrestricted awards 

and the small business set-aside awards. Only those vendors that had received a 

set-aside track award are allowed to compete for task orders that are subsequently 

deemed suitable for a small business set-aside. DHS Comments at 7-8; EAGLE 

Contracting Officer’s Statement at 2-3. 

5

 However, the RFP stated that task orders could provide for performance to 

continue up to 24 months after expiration of the underlying contract, either by

continuing to use the final year prices or by negotiating new rates. RFP at 13. 

Page 3 B-400582
Datamaxx had produced under its contract. Declaration of Datamaxx CEO, Oct. 17, 

2008, at 3-4. No solicitation for this work was issued, however. 

Approximately 8 months later, in April 2008, the TSA issued the first of three task 

order solicitations related to this dispute. The first task order solicitation was issued 

to small businesses holding EAGLE contracts, and requested fixed-price task order 

proposals to perform a scope of work similar to what Datamaxx had been asked to 

address in August 2007. AR, Tab 5, TISS Solicitation, at 1, 5. TSA did not receive any 

task order proposals from the EAGLE small businesses. On May 1, the TSA issued a 

second task order solicitation, this time noting that the competition was being 

opened to all EAGLE contract-holders. However, all of the resulting task order 

proposals were found to be unacceptable. 

On July 16, the TSA issued a third unrestricted Task Order RFP to all EAGLE 

contractors6

 soliciting new fixed-price task order proposals. The Task Order RFP 

explained that the TSA had “reviewed and clarified” the requirements in the earlier 

solicitations, and that task order proposals would be due on August 7. The 

statement of work (SOW) for the Task Order RFP provides that “the Contractor shall 

develop a web based interface and [Microsoft Structured Query Language] backend 

clustered server environment to replace the current TISS,” including making TISS 

“accessible by any PC based web browser, as well as mobile Internet accessible 

devices (Windows mobile & Blackberry) without proprietary software.” AR, Tab 8, 

Task Order RFP SOW at 1-2. 

Datamaxx filed an agency-level protest on August 7, arguing that there were at least 

five other small businesses capable of performing the scope of work in the July 16 

Task Order RFP, and that the requirement should therefore be set aside for small 

businesses, rather than being placed under the EAGLE contract.7

 TSA denied the 

agency-level protest in a letter dated September 3. Datamaxx then filed its protest 

with our Office. 

DISCUSSION 

In its agency-level protest, and again before our Office, Datamaxx argues that there 

are multiple small businesses capable of performing the TISS Development and 

Migration Project, and therefore TSA must consider soliciting the requirement as a 

stand-alone small business set-aside, pursuant to Federal Acquisition Regulation 

(FAR) § 19.502-2, and not as a task order under the EAGLE contract. At each stage 

 6

 TSA explains that it did not set aside the task order solicitation because the agency 

concluded that none of the small businesses that hold EAGLE contracts are capable 

of performing this work. 

7

 Datamaxx acknowledges that none of the small businesses it identified is an 

EAGLE contractor. 

Page 4 B-400582
of its protest, Datamaxx has cited our Office’s decision in LBM, Inc., to argue that its 

protest should be viewed as a timely challenge to the terms of the EAGLE 

solicitation, that a small business set-aside is required, and that the set-aside must be 

open to all capable small businesses. Protest at 2 (citing LBM, Inc., B-290682, 

Sept. 18, 2002, 2002 CPD ¶ 23, recon. denied, Department of the Army--Request for 

Modification of Recommendation, B-290682.2, Jan. 9, 2003, 2003 CPD ¶ 23). 

As an initial matter, all parties agree that this protest is a challenge to the terms of 

the EAGLE ID/IQ RFP from November 2005. Both TSA and DHS state that this 

makes the protest untimely. The protester, citing our decision in LBM, Inc., argues 

that the protest is timely because Datamaxx did not know, and could not have 

known, that the TISS development work would be acquired under EAGLE.8

 

Specifically, Datamaxx argues that the scope of EAGLE, and of FC4 in particular, is 

broad and ambiguous, and therefore the protester could not have anticipated that 

the TISS follow-on software development effort would be solicited as a task order 

under EAGLE before the closing date for that solicitation. As support for its 

position, Datamaxx argues that TSA itself did not consider placing the TISS 

requirement under EAGLE until 2008, as evidenced both by TSA’s August 2007 

request that Datamaxx submit a proposal and pricing for similar work from 

Datamaxx, and by TSA planning documents, which suggest that TSA’s consideration 

of EAGLE for the TISS requirement only emerged in 2008. Datamaxx asserts that 

similar considerations have led our Office to conclude that small businesses were 

timely in protesting agencies’ failures to consider small business set-asides. 

Protester’s Comments at 9-10. 

TSA responds that the scope of EAGLE was not vague, and therefore Datamaxx has 

no basis to claim that it was unable to file a protest against the failure to set aside 

TISS software development services before the closing date for the EAGLE RFP in 

November 2005. TSA argues that the specificity of the scope of the EAGLE RFP 

distinguishes the present situation from LBM, Inc. and other cases cited by 

Datamaxx. 

DHS joins TSA in its defense of this protest, and adds that it made significant efforts 

to make awards to small businesses under the EAGLE ID/IQ multiple award 

program, including coordinating the terms of the EAGLE RFP with the SBA and with 

interested small businesses. DHS argues that the level of small business competition 

 8

 We note that TSA procurements were outside our jurisdiction in November 2005, 

when the EAGLE solicitation was issued. The EAGLE RFP was issued by DHS, 

which was (and is) within our jurisdiction. Thus, our Office would have had 

jurisdiction over a protest that the terms of the EAGLE RFP improperly failed to 

provide for a set-aside of TISS software development services in November 2005. 

Page 5 B-400582
for the EAGLE contracts, and the resulting contract awards, demonstrate that the 

purposes of the Small Business Act have been met. 

In response to our Office’s request for the SBA’s views on this protest, the SBA 

argues that TSA has not met its obligations under the Small Business Act. More 

specifically, the SBA argues that the FAR requires an agency to consider the 

suitability of an upcoming requirement for performance by small businesses first, 

while conducting acquisition planning.9

 SBA Comments at 4-5 (citing FAR 

§§ 10.001(a), 19.202-2, 19.502-2, 19.1305). If such planning reveals that the 

requirement should be set aside for small businesses, the SBA argues that the 

procuring agency must then select a procurement vehicle consistent with the 

requirement for a set-aside. SBA Comments at 5. Thus, in situations where the “rule 

of two” is met, an agency could properly solicit the requirement under an ID/IQ 

contract only if the requirement is set aside for capable small business contractholders. Id. at 5. The SBA argues that procuring agencies must not be allowed to 

solicit requirements on an unrestricted basis under existing ID/IQ contracts, simply 

because no small businesses hold ID/IQ contracts, or because the small business 

contract-holders are not capable of performing the particular requirement. Id. at 6. 

Our Office has recognized that where ID/IQ contracts have very broad or vague 

statements of work, it may place an unreasonable burden upon potential offerors to 

determine whether particular work will be acquired under a particular ID/IQ 

contract, and thus whether to protest the terms of the ID/IQ contract. This burden 

may be particularly problematic for small businesses. LBM, Inc., supra, at 5 (also 

holding that “it is unreasonable to require a small business that believes that one 

specific acquisition should continue to be set aside for small businesses to identify 

the possibility . . . that the specific, and relatively small, acquisition it is interested in 

may ultimately be transferred to the ID/IQ contracts”); see also Ocuto Blacktop & 

Paving Co., B-284165, Mar. 1, 2000, 2000 CPD ¶ 32 at 5-6 (protest filed at time of task 

order for landfill capping is timely where solicitations for ID/IQ contracts “do not 

provide clear notice that the [agency] will use these contracts to procure 

environmental remediation work at [particular] sites”). 

Our Bid Protest Regulations contain strict rules for the timely submission of 

protests. By implication where the solicitation for the ID/IQ contract is not broad 

and vague, but rather, gives clear notice of the agency’s intention to procure 

particular requirements under an ID/IQ contract, any protest of those terms of the 

 9

 The SBA also argues that this hierarchy is implied by our decision in International 

Program Group, Inc., because Historically Underutilized Business Zone (HUBZone) 

set-asides are mandated by statute in certain cases. SBA Comments at 6-7 (citing 

International Program Group, Inc., B-400278, B-400308, Sept. 19, 2008, 2008 CPD 

¶ 172). Nevertheless, this protest does not raise issues under the HUBZone program, 

and therefore we will not address it. 

Page 6 B-400582
solicitation must be filed before the solicitation closing date. 4 C.F.R. § 21.2(a)(1) 

(2008). Our timeliness rules reflect the dual requirements of giving parties a fair 

opportunity to present their cases and resolving protests expeditiously without 

unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--

Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD ¶ 62 at 3. 

In our view, the terms of the EAGLE solicitation provided clear notice to Datamaxx 

that software development services, like those at issue here, would be acquired 

through EAGLE. We also note that the EAGLE solicitation was posted on 

Fedbizopps.gov, thus providing the public--including Datamaxx--notice of those

terms. As such, in order to be timely, any challenge to the terms of the EAGLE 

solicitation had to be filed by the closing date, November 14, 2005. 

Datamaxx also argues that our Office’s decisions indicate that it could not have filed 

a protest that the terms of the EAGLE RFP improperly failed to consider a set-aside 

for TISS follow-on work in November 2005, because such a protest would have been 

premature, defensive, and based only on speculation that the TSA would act contrary 

to law and regulation. Protester’s Comments at 11. We disagree. As stated above, 

the EAGLE RFP provided clear notice that software development services were 

within its scope, and therefore a timely protest arguing that this requirement should 

be reserved for small businesses would have been neither premature nor speculative. 

In our view, resolving disputes like these while the ID/IQ solicitation is open is key to 

the proper functioning of the procurement system. Alleged solicitation defects must 

be raised and resolved before the closing time for submission of proposals whenever 

possible. To hold otherwise would leave the scope of ID/IQ contracts open to 

challenge long after the establishment of those contracts, and would unduly disrupt 

and delay ordering processes that were intended to be efficient and expeditious. 

The protest is dismissed. 

Gary L. Kepplinger 

General Counsel 

Page 7 B-400582