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

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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GAO sustained the protest of an excluded potential bidder finding that solicitation from three sources may not be enough to meet the requirement that agencies "promote competition to the maximum extent practicable" under simplified acquisition procedures. GAO found that the acquisition specialist "clearly knew" protester was interested in providing the required products and she did not have a reasonable basis to exclude them. GAO sustained the protest on this basis even though the agency solicited bids from three sources as required by FAR 13.104(b).

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In its May 2, 2009 decision, GAO sustained the latest in a series of protests by American K-9 Detection Services, Inc. (AK-9) on the grounds that the Army improperly limited discussions and in doing so, failed to give AK-9 the opportunity to submit an improved final proposal revision addressing the significant weaknesses or deficiencies in its proposal that were noted in the Army’s award decision. The protest was the sixth of AK-9’s protests against the award of a fixed-price indefinite-delivery, indefinite-quantity contract for contractor working dog services in Afghanistan. Award of the one-year contract with four option years was made to EOD Technology, Inc. (EODT) at a price of $38,350,935.

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