GAO Clarifies Scope of Expanded Bid Protest Jurisdiction
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]."
NDAA Modified FASA's Jurisdictional Limitations for Task and Delivery Orders
FASA acknowledges that contractors holding IDIQ contracts "shall be provided a fair opportunity to be considered" for award of delivery and task orders; however, FASA limits jurisdiction over such protests to those challenging an increase in the scope, price or maximum value of the underlying contract. See 10 U.S.C. § 2304c(b), (d). NDAA created a second exception to FASA's prior jurisdictional limitation by allowing protests of task and delivery orders valued in excess of $10 million.
In addition, NDAA expounded on the "fair opportunity to be considered" requirement by clarifying that agencies soliciting for task and delivery orders in excess of $5 million must provide, at a minimum:
(1) a notice of the task or delivery order that includes a clear statement of the agency’s requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.
GAO Rejects Agency's Limited Interpretation of New Bid Protest Jurisdiction
The agency sought to limit GAO's bid protest jurisdiction to a procedural review of whether the process for issuing the task or delivery order properly provided notice of NDAA's newly enumerated requirements. Relying on the definition of "protest" as defined in CICA and FASA, GAO rejected this argument holding that its bid protest jurisdiction for task and delivery orders valued in excess of $10 million is substantively the same as the jurisdiction conferred by CICA and FASA.
