As a branch of the Treasury Department, the United States Mint would usually be subject to federal procurement laws, like bid protests. As one contractor recently discovered, however, certain activities at the Mint have been exempted from many federal procurement laws, including GAO protest review.
Simply put, the GAO can’t decide a bid protest of Mint procurements.
An agency may modify a contract without running afoul of the Competition in Contracting Act, so long as the the modification is deemed “in scope.” An “out of scope” modification, on the other hand, is improper–and may be protested at GAO.
In a recent bid protest decision, GAO denied a protest challenging an agency’s modification of a contract where the modification was within scope and of a nature that competitors could have reasonably anticipated at the time of award. In its decision, GAO explained the difference between an in scope and out of scope modification, including the factors GAO will use to determine whether the modification is permissible.
An agency’s task order award was improper because the order was outside the scope of the underlying IDIQ contract.
In Threat Management Group, LLC, GAO sustained a protest holding that the Air Force violated the Competition in Contracting Act by issuing a task order for some work beyond the scope of the awardee’s IDIQ contract. GAO’s decision highlights the fact that an order must be within the scope of the underlying contract–and the award of an out-of-scope order can be successfully challenged in a bid protest. Continue reading
Under the Competition in Contracting Act, the Government Accountability Office is required to issue an annual report to Congress that summarizes the “most prevalent grounds” of sustained protests, identifies the instances in which GAO was not able to decide a protest within its 100-day deadline, and list any protest where the agency did not follow GAO’s recommendations.
The 2017 National Defense Authorization Act doubles down on this first requirement: it mandates that GAO provide Congress with a list of the most common grounds for sustaining protests. This only begs the question: why would Congress require GAO to do something it’s already required to do (and that it’s already doing)?
As previously foreshadowed and discussed in depth, October 1, 2016, marked the date in which unsuccessful offerors lost the ability to challenge most task order awards issued by civilian agencies.
Although the GAO remains able to hear protests relating to DoD task orders exceeding $10 million, two recent GAO decisions impose an important limitation: GAO does not have jurisdiction to consider awards issued by DoD under a multiple-award contract operated by a civilian agency.
An agency may not procure new services under an existing GSA Schedule delivery order if the new services exceed scope of the original delivery order.
In a recent decision, Onix Networking Corp., B-411841 (Nov. 9, 2015), the GAO sustained a protest where the agency acquired a new type of software by modifying an existing delivery order for software license extensions because the acquisition exceeded the scope of the initial delivery order. According to the GAO, the out-of-scope modification amounted to an improper sole source contract.
After a protest was filed at the GAO, a procuring agency delayed implementing the mandatory statutory suspension of work, then amended the awardee’s contract to permit the awardee to fully perform before the suspension actually kicked in.
Then the agency got caught.
In a recent decision, the GAO sustained a protest because the agency had circumvented the GAO’s bid protest process. But while the agency got busted–a good thing–the penalty it will pay is less than satisfactory.