The GAO’s authority to hear bid protests of task orders is generally limited to instances in which the task order at issue is valued over $10 million.  However, the GAO recently held that the limit doesn’t apply to task orders issued under Blanket Purchase Agreements (“BPAs”).  Contractors competing for task order awards under BPAs should be aware that they may file bid protests with the GAO, even where a task order is valued at far less than $10 million.

In C&B Construction, Inc., B-401988.2 (Jan. 6, 2010), the GAO considered a protest of a task order for stream maintenance services under the Forest Service’s Engineering and Road Maintenance BPAs.  The solicitation called for award to be made on a “best value” basis, with cost, past performance, and key personnel equally weighted.

C&B Construction, Inc. was one of three firms to submit an offer.  After award was made to a competitor, C&B filed a GAO bid protest, alleging that the Forest Service had improperly evaluated proposals.

The Forest Service argued that the protest should be dismissed because it fell outside the GAO’s jurisdictional authority.  The three bids had come in around $40,000, falling far short of the $10 million threshold.  According to the Forest Service, this meant that C&B had no right to protest.

The GAO rejected this argument, holding that it had authority to hear BPA task order protests under $10 million.  The GAO drew a distinction between a “task and delivery order contract,” to which the statutory $10 million threshold applies, and a BPA.  Under a task or delivery order contract, the government is bound to order at least a minimum amount of supplies and services from a vendor.  In contrast, “a BPA is generally not a contract, and a BPA does not obligate the agency to enter into future contracts with the vendor.”  Because C&B’s protest was pursuant to a BPA task order, the GAO held that “we have no basis to dismiss C&B’s challenge for lack of jurisdiction.”

The distinction between a BPA and a task or delivery order may seem technical, but, as C&B Construction demonstrates, it is important for contractors to be cognizant of whether they are operating under a BPA or a task/delivery order contract.  If the relationship is governed by a BPA, contractors may be entitled to bring bid protests to the GAO without regard to the contract amount.

One final note on C&B Construction: after rejecting the Forest Service’s jurisdictional challenge, the GAO sustained C&B’s protest, holding that the Forest Service applied an unstated evaluation factor and failed to properly document its award.  C&B’s contractual savvy in identifying the BPA task order as a proper subject for a GAO protest led not only to a decision on the merits, but a favorable one.