GAO: Small Task Order Protesters Can Protest Scope of Task Order

Congress has made it pretty tough to file a protest against a task order. For one thing, task order protests can generally only occur at the Government Accountability Office (GAO). For another, if a task order dollar value is too small, it can’t be protested at all. A recent case confirms that the exceptions to the restrictions on task order protests are quite narrow. However, a protest can allege that a task order increases the scope, period, or maximum value of the contract under which it is issued. Here, the protester did that. GAO had jurisdiction, but still denied the protest. 

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Exception to the Rule: Evaluating Price at IDIQ Versus Order Level Is a Limited Exception

A recent COFC decision yielded some important insights about government contracting. We already wrote about some joint venture aspects of the decision. But the decision also touched on whether GSA’s solicitation violated federal procurement law by excluding price as an evaluation factor at the indefinite delivery indefinite quantity (IDIQ) level for a procurement.

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SBA New Rule: Guidelines for Compliance with Limitations on Subcontracting in 13 C.F.R. 125.6

13 C.F.R. § 125.6 sets out the limitations on subcontracting for all small business set-asides (including 8(a), SDVOSB/VOSB, HUBzone, and WOSB/EDWOSB set asides.) These limitations on subcontracting are crucial for any small business federal contractor to be familiar with, and we have discussed how they work here. But, while the regulation does provide for certain legal penalties for violations of these limitations, up until SBA’s recent rule change, it didn’t provide for any direct consequences for a company’s past performance (although conceivably an agency could mention limitations on subcontracting as part of a CPARS review). Furthermore, SBA now will require that compliance with the limitations be looked at on an order-by-order basis for multi-agency set aside contracts where more than one agency can issue orders under the contract, and for full and open contracts where the task order is set aside for small businesses. All this is effective May 30, 2023, and we explore these changes here.

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GAO Sustains Protest Where Agency Fails to Properly Justify “Brand Name Only” Requirement

When an agency restricts a solicitation to a single brand-name, the agency must appropriately justify its decision, even where the solicitation is competed among holders of a governmentwide acquisition contract.

In a recent case, the GAO sustained a protest, holding that an agency violated the FAR by failing to properly justify its brand-name restriction.

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Small Business Being Acquired by a Large Business? For Multiple Award Contracts, the 180-Day Rule Doesn’t Apply to Task Orders, says GAO

You may recall a post of ours back in April 2021, where we discussed a little-known change to SBA’s size determination rules that occurred in October 2020. SBA created an exception, at 13 C.F.R. § 121.404(g)(2)(iii), to the usual “size is determined at offer date” rule. Now, prior to award, when a small business is part of a merger or acquisition after it makes an offer on a solicitation, the business has to recertify its size, and depending on when that acquisition occurred, if the business is now large, it may lose its award.

However, the rule is for better or worse not that straightforward, as a small business learned in a recent GAO decision. Because a part of the rule says that task order awards in such cases may not be treated as small business awards, GAO concluded that such awards are still allowed.

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GAO: Small Business Rule of Two Doesn’t Require Set-Aside for Task Order

Generally, the small business Rule of Two requires an agency to set aside contracts for small business, assuming that there are at least two small businesses with competitive prices who will bid on the contract. But does the small business Rule of Two apply to orders under a multiple award contract? In a recent decision, GAO affirmed the answer is no–application of the small business Rule of Two for orders under a multiple-award contract is discretionary.

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GAO Clarifies Increase-the-Scope Exception For Task Order Jurisdiction

GAO may only consider protests to civilian agency task or delivery orders under $10,000,000 if the protests allege that the order increases the scope, period, or maximum value of the underlying contract. GAO recently dismissed a case for lack of jurisdiction where the protester relied on the underlying contract’s ordering clause to argue that the agency’s amendment to the evaluation scheme was “out of scope.” Let’s take a look.

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