Protesting IDIQ Orders Under $10 Million? Here Are Your Options

by Perkins Coie

Imagine that your company is a contract holder under a U.S. Army multiple award, indefinite-delivery, indefinite-quantity (IDIQ) contract.  The Army issues a request for proposal for a firm, fixed-priced task order, and your company submits a timely proposal.  After completing its evaluation of proposals, the Army awards to a competitor an order in the amount of $9.5 million.

Suppose you believe that the Army has failed to follow its evaluation criteria.  What options do you have? Given that the competition was for the award of an order, rather than for the award of a stand-alone prime contract, your options may be more limited than you may think.

Authorized Protest of a Task or Delivery Order Award

Protest of an awarded task or delivery order is only authorized if the order is one of two types: (1) an order valued at more than $10 million, or (2) an order that increases the scope, period, or maximum value of the underlying contract.  10 U.S.C. § 2304c(e).  Given that the value of the order in our example is under $10 million, the order does not fall within the first category.  With respect to the second category, it is unlikely that the order increased the period or maximum value of the underlying contract.

This leaves only one potential basis for protest, namely, that the order increased the scope of the underlying contract.  Unfortunately, GAO has interpreted this exception narrowly in the following published decision:  In Colette, Inc.–Request for Reconsideration, B-407561.2 (Jan. 3, 2013), the protester argued that the Army’s source selection process did not comply with the evaluation criteria set forth in the underlying IDIQ contract and that, as a result, the resulting task order exceeded the scope of the contract.  GAO rejected this argument, finding that the protester’s interpretation of “scope” was too broad.  GAO stated:

[T]he protester’s reconsideration request demonstrates a fundamental misunderstanding of what is meant by “exceeding the scope” of the underlying ID/IQ contract. . .  The thrust of Colette’s allegation is that a flawed evaluation results in a task order that goes beyond the scope of the underlying contract.  We disagree.

In entertaining protests related to the issuance of task orders, we have consistently understood “scope” to refer to the scope of work authorized in the underlying contract.

In the example outlined above, the Army’s failure to follow its own evaluation criteria likely would not be sufficient to establish a basis for protest under the Collete decision.  To prevail, you would have to establish that certain work under the Army task order exceeds the scope of work authorized in the underlying contract.  For example, if the scope of work in the underlying contract concerned the delivery of database management software, but the task order called for accounting software, this difference likely would establish a basis for protest based on an increase in the scope of the underlying contract.

Nonprotest Options

Assuming the task order scope of work is consistent with the underlying contract’s scope of work, only nonprotest options would then be available.  Such options might include a letter of concern to the contracting officer and agency counsel, stating that, despite the lack of protest grounds, you still have regulatory grounds to complain regarding the award of the order.  Under the Federal Acquisition Regulation (FAR), the contracting officer “must provide each awardee a fair opportunity to be considered for each order exceeding $3,000 issued under multiple delivery-order contracts or multiple task-order contracts.”  FAR 16.505(b)(1)(i).  In addition, for task or delivery orders in excess of $5 million, the contracting officer must, at a minimum, provide:

(A) A notice of the task or delivery order that includes a clear statement of the agency’s requirements;

(B) A reasonable response period;

(C) Disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating proposals, and their relative importance;

(D) Where award is made on a best value basis, a written statement documenting the basis for award and the relative importance of quality and price or cost factors; and

(E) An opportunity for a postaward debriefing[.]

FAR 16.505(b)(1)(iv).

Thus, assuming award was made on a best value basis, you could request a written statement documenting the basis for award and the relative importance of quality, price and cost factors.  You could also request a debriefing.  By doing these things, you might obtain a reasonable explanation of the Army’s decision.  Further, you may learn something to improve your future proposal efforts, placing your company in a better position to win a future award.

The Ombudsman Option

Finally, another option is to complain to the “task-order and delivery-order ombudsman.”  See FAR 16.505(b)(8).  If your grounds are solid, the ombudsman might take action.  While the ombudsman does not have the power to overturn the task order award, he can attempt to persuade the agency procurement official that the task order procedures were flawed and that corrective action is in the contracting activity’s best interests.  Such corrective action might include recompetition of the task order or corrective change to future task order competitions.  Practical experience indicates that – like agency protest procedures – the efficacy of ombudsman complaints varies among individual agencies and commands.

So, in this scenario, while you may not have the right to protest, there are other options that might produce some favorable results.

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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