Bid Protest Law : Government Contracts Lawyer & Attorney : K & L Gates Law Firm : Contract Compliance, Bid Protests

GAO sustained a trio of cases holding that awards to Federal Supply Schedule (FSS) contractors were improper where the awardee did not have all items on its FSS contract at the time of award. GAO noted that the only exception to this rule is for items that do not exceed the micro-purchase threshold, currently $3,000. FSS contract holders should take care to make sure that all bids for FSS task orders are within the scope of their contract offering, and that the actual value of non-schedule or “open market” items is not more than $3,000 in the aggregate.

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GAO determined that it had jurisdiction to hear a protest involving a task order issued under a Blanket Purchase Agreement (BPA) valued at less than $10 million. The Federal Acquisition Streamlining Act of 1994 (FASA) restricted GAO’s jurisdiction over task and delivery orders. That jurisdiction was modified by Section 843 of the National Defense Authorization Act of Fiscal Year 2008 which granted GAO jurisdiction over task or delivery valued over $10 million. The task order in this protest indisputably was valued at less than $10 million. However, GAO determined that because the delivery order here was issued under a BPA and not a contract, FASA’s jurisdictional restriction did not apply.

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GAO sustained a protest challenging the evaluation of protestor’s proposal where the agency failed to consider past performance information requested by the agency and provided by protestor’s references. Finding that past performance in the agency’s possession was “too close at hand” for the agency to ignore, GAO determined that the agency’s evaluation of protestor’s past performance was unreasonable. 

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GAO sustained a protest challenging the evaluation of awardee’s proposal which exceeded the page limitations permitted by the solicitation. Agreeing with protestor, GAO found that after elimination of the pages exceeding the limitation, there was no reasonable basis for the agency to conclude that awardee complied with solicitation requirements. 

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GAO denied a protest by Perot Systems Government Services, Inc. (Perot) finding that the contracting officer properly rejected Perot’s proposal that contained labor rates not yet approved by the General Services Administration (GSA). Rejecting several arguments from Perot as to why the rates in its proposal were fair and reasonable, GAO held: “vendors under FSS purchases must quote schedule prices that are published and that have been determined to be fair and reasonable by GSA.” GAO noted that the only exception to this rule was for additional discounts offered from approved GSA prices.

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After scoring protester’s proposal with 95.64 points out of a possible 100, the Department of Interior (“DOI”) determined that protestor’s proposal was unacceptable because it included the following qualification: “All materials will be cleared for education and museum presentation use for the life of the programs, up to twenty years.” DOI found, and GAO agreed, that this language took exception to the data rights provision in the solicitation which provided that DOI would have unlimited rights in all data delivered under the contract. Because the data rights provision was a “material term,” says GAO, DOI properly found protester’s proposal unacceptable.

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GAO dismissed a protest filed by a fellow ID/IQ contractor holding that it lacked jurisdiction because the task order at issue was valued at less than $10 million. Citing the general rule that GAO does not have jurisdiction over task orders valued at under $10 million unless the protestor alleges that the order increases the scope, period, or maximum value of the underlying contract (the so-called “Cardinal Change” doctrine), it then went on to exempt fellow ID/IQ holders from those eligible for that exemption.

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The United States Court of Appeals for the Federal Circuit affirmed a ruling from the Court of Federal Claims that an ID/IQ contract is an appropriate vehicle for construction of military housing. Rejecting assertions that ID/IQ contracts apply only to acquisition of supplies and services, which excludes construction, and that using an ID/IQ contract for construction constituted improper bundling in violation of the Small Business Act, the court held that use of ID/IQ contracts for new construction projects does not violate any procurement regulations.

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GAO recently clarified the scope of its newly acquired jurisdiction over task and delivery orders in excess of $10 million under indefinite-delivery/indefinite quantity (IDIQ) contracts. GAO rejected the agency's jurisdictional challenge holding that it was authorized to consider the protest under section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 236-39 (2008), which modified the Federal Acquisition Streamlining Act of 1994's (FASA) prior limitations on task and delivery order protests. GAO further clarified that its newly acquired jurisdiction under the NDAA was not limited in scope, and instead conferred "the same substantive protest jurisdiction conferred by [the Competition in Contract Act of 1984 (CICA) and FASA]."

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