Avoiding Common Bid Protest Mistakes
Mistake 6: Failing to Identify Minimum Task Order Protest Thresholds
Solution: Learn Where and When You Can Protest Task Orders, and What Dollar Thresholds Apply at Civilian and Defense Agencies.
In today’s government contracting space, multiple award contracts are increasingly common. As a result, many contractors hold some type of Indefinite Delivery Indefinite Quantity (IDIQ) contract with a federal agency. It is not unusual, then, for potential protests to arise in relation to the award of task orders under those IDIQs. Sometimes this leads to contractor 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 contractors from protesting a task order award. Fortunately, these limits are laid out in clear terms in FAR 16.505(a)(10), which at least allows contractors to be prepared. The FAR states in relevant part that:
(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 …
(2) For DoD, NASA, or the Coast Guard, a protest of an order valued in excess of $25 million …
(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 rule for task orders. In other words, unless your situation fits within the limited 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, and should be the subject of a separate competition. These protests are akin to protests of modifications made to existing contracts that expand the contract’s scope in violation of the Competition in Contracting Act. These are less common than those task order protests that can proceed under section (B).
16.505(10)(i)(B) establishes minimum dollar thresholds, but those thresholds depend on what agency you are dealing with. The threshold is $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. If the task order at issue does not meet this threshold, there is little point in protesting; the protest will be dismissed immediately for lack of jurisdiction.
In certain cases, it will be easy to tell if your potential protest is over or under the applicable dollar threshold. Other times, though, it becomes more complicated. For example, determining which threshold even applies can be tricky when dealing with a contract involving multiple agencies – what happens when you have an Army Task Order placed under a GSA contacting vehicle? Is it the $10 or the $25 million threshold that controls? You can see how things can get a little confusing.
Things can also get tricky when it is unclear what the value of the contract really is – for example, if the awarded contract is below the applicable threshold, but the protestor’s price was above the threshold. Or if the agency, during source selection, engaged in some sort of price adjustment that pushed the awarded price over or under the threshold. In these more complicated scenarios, it is important to discuss, with a legal professional, the potential impact of the jurisdictional dollar threshold on your protest. You would not want to waste time or money pursing a protest that is sure to be dismissed.
Also remember that, even if you exceed the minimum threshold, your options are still more limited than they would be in other protest contexts. That is because task order protests may only be filed with the GAO, in accordance with GAO procedures. Contractors cannot file a task order protest at the Court of Federal Claims, which normally has concurrent jurisdiction over protests with the GAO. Because the GAO has shorter filing deadlines 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. Fail to do so and you will lose your ability to protest.
All of the above said, if you are unable to file a task order protest due to the jurisdictional limits, you are not entirely without recourse. You can file a complaint with the agency’s task-order and delivery-order ombudsman, though this process is admittedly not as clear cut as the protest process, and might not be as effective. If you have questions about a potential protest of a task order award, or any other bid protest questions, you should consult a legal professional with experience in this specific area of law.