Avoiding Common Bid Protest Mistakes, Part 5: Limitations on Task Order Protests

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP

While we are keeping a close eye on developments related to the ongoing pandemic and its impact on government contractors (check out our guidance to date at govconexaminer.com), now that some states are starting to reopen – and some on-hold procurements are starting to move forward again – we  thought it might be helpful to return to our series on avoiding common bid protest mistakes.  Thus far, our series addressed pre- vs. post-award protests, the impact of required debriefings on protest deadlines, competitive range protests, and some best practices for debriefings. Today, we are tackling a very important – and often misunderstood topic- task order protests.   

Many of our clients hold some type of multiple-award task order contract with the federal government.  They often find that there are protestable issues related to the award of task orders under those contracts.  Sometimes this leads to frustration, as there are limits on what task orders can be protested, and where they can be protested.  These limits can, in certain circumstances, prevent you from protesting a task order award.  Fortunately, these limits are laid out in clear terms in FAR 16.505(a)(10), which states:

(10) (i) No protest under subpart 33.1 is authorized in connection with the issuance or proposed issuance of an order under a task-order contract or delivery-order contract, except—

                     (A) A protest on the grounds that the order increases the scope, period, or maximum value of the contract; or

                     (B) (1) For agencies other than DoD, NASA, and the Coast Guard, a protest of an order valued in excess of $10 million (41 U.S.C. 4106(f)); or

                           (2) For DoD, NASA, or the Coast Guard, a protest of an order valued in excess of $25 million (10 U.S.C. 2304c(e)).

         (ii) Protests of orders in excess of the thresholds stated in 16.505(a)(10)(i)(B) may only be filed with the Government Accountability Office, in accordance with the procedures at 33.104.

That’s a lot of information, so let’s break it down.  To begin, 16.505(10)(i) establishes that “no protest” is the default— in other words, unless your situation fits within the exceptions outlined in 16.505(10)(i)(A) or (B) you will not be able to protest a task order award. 

The exception laid out in 16.505(10)(i)(A) applies to protests of orders that would award work in excess of what is authorized by the underlying multiple-award contract.  Such protests generally involve situations where the government is attempting to shoehorn in work that is not properly within the scope of the original contract, but should be the subject of a separate competition.  These protests are akin to protests of modifications to existing contracts that expand the contract’s scope in violation of the Competition in Contracting Act, which you can learn more about in our blog post here.  These are not that common, so more often, the question becomes whether or not your task order protest can proceed under section (B). 

16.505(10)(i)(B) establishes minimum threshold of $10 million for protests of task orders issued by civilian agencies, and $25 million for protests of task orders issued by the DOD, NASA or the Coast Guard.  These thresholds are strictly enforced by the Government Accountability Office (GAO).  If the task order at issue does not meet this threshold, there is little point in protesting it as the protest will be dismissed immediately.  What threshold applies can be especially tricky when dealing with a contract involving multiple agencies.

If the task order at issue is larger than the minimum threshold established in 16.505(10)(i)(B), 16.505(10)(ii) states that such protests may only be filed with the GAO, in accordance with their procedures.  This means that contractors cannot file a protest at the Court of Federal Claims, which normally has concurrent jurisdiction over protests with the GAO.  As the GAO has much shorter time limits for when a protest can be filed than the Court of Federal Claims, it is vital that contractors act very quickly if they want to take action on a task order protest.  Further, 16.505(10)(ii) also means that contractors cannot file task order protests directly with the agency involved.  See e.g. Matter of: FEI Sys., 2017 Comp. Gen. Proc. Dec. P349 (Comp. Gen. November 17, 2017).  In FEI Systems, the contractor initially filed its task order protest with the agency, which dismissed it for lack of jurisdiction, forcing the contractor to refile at the GAO. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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