SmallGovCon Week In Review: March 20-24, 2017

The mantra of March Madness is “survive and advance,” but the Kansas Jayhawks did more than that in their 32-point win over Purdue last night. Here in Lawrence, we’re waiting for tomorrow night’s Elite Eight showdown with Oregon. And since waiting is always better with some good reading material, it’s time for the SmallGovCon Week In Review.

In this week’s edition, a look at how President Trump’s proposed military budget will impact customers, a contractor agrees to a whopping $45 million payout to settle allegations of overcharging the government, the Army contends that protests are “nearly automatic,” and much more.

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GAO: Agency Erred By Issuing Out-of-Scope Task Order

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

2017 NDAA Restores GAO’s Task Order Jurisdiction – But Ups DoD Threshold

The 2017 National Defense Authorization Act restores the GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.

The 2017 NDAA also continues to allow the GAO to hear protests of DoD task and delivery orders–but raises the jurisdictional threshold to $25 million.

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GAO: IDIQ Awardee Could Not Protest Selection of Fellow Awardee

The GAO ruled recently that an awardee under a multiple-award IDIQ contract did not have standing the protest the agency’s selection of another awardee.

The decision highlights one of the main tenets of government contracting law: competition is in the government’s interest, and a protest that seeks to reduce competition to the benefit of the protestor could, in a case like this, be thrown out.

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GAO Bid Protest Jurisdiction And Contract Modifications

The GAO’s bid protest jurisdiction typically does not extend to reviews of contract modifications.

In a recent GAO bid protest decision, Cornische Aviation & Maintenance, LTD, B-405013.4 (Jan. 25, 2013), the GAO held that the protester’s allegations regarding a contract modification were not within the scope of the GAO’s bid protest function.  The Cornische Aviation GAO bid protest decision demonstrates the GAO’s limited ability (or willingness, depending on one’s point of view) to decide bid protests involving contract modifications.

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GAO: Task Order Discussions Must Identify Weaknesses

An agency must identify weaknesses or deficiencies in an offeror’s proposal when the agency conducts discussions as part of a task order competition, according to a recent GAO bid protest decision.

In Mission Essential Personnel, LLC, B-407474, B-407493 (Jan. 7, 2013), the GAO held that a procuring agency erred by failing to inform an offeror of two weaknesses or deficiencies in its proposal.  The GAO concluded that discussions must include this information even when the procurement is a task order competition conducted under FAR part 16.

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GAO Task Order Jurisdiction: “Scope” Exception Is Narrow

As I have previously written, the GAO lacks authority to hear bid protests of task orders valued at less than $10 million, except if the protester can show that the order increases the scope, period, or maximum value of the contract against which the order was issued.

In a recent bid protest decision, the GAO held that the “scope” exception applies only if the task order changes the underlying scope of work–denying the protester’s argument that any task order that is not evaluated in accordance with the contract’s requirements necessarily goes beyond the contract’s scope.

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