No Protest of CIO-SP3 SB Order Below $10 Million, Says GAO

A CIO-SP3 SB contract holder could not protest the award of a task order to a competitor because the order was valued at less than $10 million.

In a recent bid protest decision, the GAO confirmed that civilian task order awards–including those under CIO-SP3 SB–generally cannot be protested unless the value of the order exceeds $10 million.

The GAO’s decision in AMAR Health IT, LLC, B-414384.3 (Mar. 13, 2018) involved a task order RFQ issued by the Department of Health and Human Services.  HHS issued the RFQ as part of the CIO-SP3 SB Government-Wide Acquisition Contract.

After evaluating quotations, HHS initially awarded the task order to AMAR Health IT, LLC at a price of nearly $14 million.  Zolon Tech Inc., an unsuccessful competitor, ultimately filed two GAO bid protests challenging the award to AMAR.  In response to the second protest, the HHS conducted discussions and evaluated final quotations.  The HHS then awarded the task order to Zolon at a price of approximately $6.3 million.

AMAR attempted to file a GAO bid protest challenging the award to Zolon.

The GAO wrote that “[p]rotests filed with our Office in connection with the issuance or proposed issuance of a task or delivery order under a civilian agency IDIQ contract are not authorized except where the order is valued over $10 million, or where the protester can show that the order increases the scope, period, or maximum value of the contract under which the order is issued.”  For purposes of determining the value of an order, the awardee’s price “is controlling since the terms of the order define the scope and terms of the contractual commitment between the contractor and the government.”

The GAO rejected AMAR’s creative efforts to encourage the GAO to take jurisdiction.  “Here,” the GAO wrote, “because the order at issue is valued at less than $10 million, we lack jurisdiction to consider the protester’s challenge.”

The GAO dismissed the protest.

It’s easy to understand AMAR’s frustration with the circumstances here.  AMAR would have won the order itself but for two GAO protests from Zolon.  Then, when AMAR attempted to return the favor, it was unable to do so because Zolon’s price was below the $10 million threshold.  Because the awardee’s price governs, when AMAR was the awardee, the order was protestable; when Zolon was the awardee, it wasn’t.

The AMAR Health IT case highlights the difficulty of attempting to protest a task order under CIO-SP3 or another multiple-award contract.  Except in unusual circumstances, the GAO lacks jurisdiction to consider the award of a task order under a civilian multiple-award contract where the value of the order is less than $10 million.