The Rules for Protesting ID/IQ Task Orders
With increasing attention on Federal IT procurement and the rules governing such acquisitions, it’s important to understand the rules that apply to protesting the various purchasing vehicles government agencies use to obtain IT services and solutions. A
ccording to Deniece Peterson of Deltek, for the last several years Federal agencies have been obtaining more than half of their IT solutions through indefinite delivery/indefinite quantity (ID/IQ) contacts, which means that protests are limited unless certain conditions are met.
So under what circumstances can a protest occur?
The Bar to Protesting Task Orders under $10 Million under ID/IQ Contracts
The protest process allows a large number of contracting actions to be challenged, but there is one glaring exception: task orders and delivery orders (hereafter “task orders”) placed against ID/IQ contracts. Currently, protests against task orders are not allowed unless the task order (1) increases the scope, period, or maximum value of the contract or (2) exceeds $10 million (in which case the protest may be filed only with the Government Accountability Office, GAO).
Since ID/IQ contracts are so prevalent in federal contracting, this is an enormous exception to the general rule allowing contracting actions to be protested. Starting with the passage of the Federal Acquisition Streamlining Act of 1994 until 2008, all task orders, regardless of the dollar value, were virtually immune from protests. Concerned that this level of protest immunity could encourage too many noncompetitive (and therefore potentially wasteful) contracting actions, Congress narrowed this exception by allowing the GAO (and only the GAO) to hear protests of all task orders that exceed $10 million. Regardless, considering that the government routinely issues task orders under $10 million to fill its needs, this bar to protests shields billions of dollars’ worth of contracting actions from protests every year.
Despite the bar on protests of task orders under $10 million, certain types of task order protests are always allowed. These are protests arguing that a particular task order increases the “scope, period, or maximum value” of the contract. The theory behind this “exception to the exception” is that a task order that violates one of these three limitations was not subject to competition originally, and therefore such a task order should not enjoy immunity from protest.
Further, it is important to note that the bar against task order protests does not extend to orders that are placed off GSA Schedules. See FAR Subpart 8.4.
Excerpted with permission from Key Case Law Rules for Government Contract Formation by Patrick Butler. ©2014 by Management Concepts Inc. All rights reserved. www.ManagementConcepts.com
