As agencies look for ways to streamline acquisitions, task and delivery order procurements are becoming increasingly popular. But an agency doesn’t have unfettered discretion to award work under a multiple-award contract; each task or delivery order must be within the scope of the awarded IDIQ.

A recent GAO opinion considers what happens when an agency issues task orders that are outside the scope of the underlying multiple-award contract.

In Western Pilot Service, B-415732 (March 6, 2018), Western Pilot Service and others protested the award of a task order request for proposals for single engine air tanker (SEAT) flight services to support the Bureau of Land Management’s wildfire suppression operations.

The BLM issued two solicitations, in keeping with historical precedent. One was for aircraft to be available on-call when needed and would be for surge capability (the on-call solicitation). Awardees would then have the option to accept or decline work. This on-call solicitation was to be awarded based on a best-value tradeoff.

The other solicitation was for 33 aircraft for dedicated BLM use for guaranteed periods of at least 100 days that would serve as the base of the fire suppression operations (the exclusive-use RFP). The exclusive-use RFP required contractors to devote their aircraft for the full 100-day task order. Again, BLM would make award based on a best-value tradeoff basis.

For the 2017 wildfire season, a series of protests led the BLM to cancel the exclusive-use procurement, leaving only the on-call procurement in place for that season.

After the 2017 wildfire season, instead of issuing a new exclusive-use solicitation, BLM issued the task order request for proposals, challenged here, under the on-call IDIQ contracts. The TORP called for more than 40 task orders for fixed periods at 21 locations for periods of 75, 90, and 100 days.

The protesters argued that the flight services contemplated under the TORP were beyond the scope of the on-call IDIQ contracts, and the way that flight services would be furnished under the “TORP is materially different than how services are provided under the on-call contract.”

GAO noted that, absent exceptions that allow for sole-source or limited competition, “[t]ask orders that are outside the scope of the underlying multiple-award contract are subject to the statutory requirement for full and open competition set forth in the Competition in Contracting Act of 1984 (CICA).”

To determine if a task or delivery order is beyond the scope of an underlying contract, GAO looks at whether the order is “materially different from the original contract,” based on “the circumstances attending the original procurement; any changes in the type of work, performance period, and costs between the contract as awarded and the order as issued; and whether the original solicitation effectively advised offerors of the potential for the type of orders issued.” GAO also examines “whether the agency itself has historically procured the task order services under a separate contract, such that it appears that the agency itself has viewed the task order services as separable and essentially different in nature.”

Based on this somewhat vague standard, GAO compared the on-call contracts to the TORP and found “that SEAT flight services for guaranteed periods of at least 75 days at predetermined locations are beyond the scope of the protesters’ on-call contracts.” GAO concluded that the “TORP essentially converts the on-call contracts into exclusive-use procurement vehicles.”

GAO compared the specifics of the two types of services (on-call and exclusive-use), noting that the on-call services were for emergencies, for shorter periods when needed, with aircraft moving to various locations around the country. The exclusive-use TORP services, conversely, were for one location, for 75 days or more, and for BLM use for an entire period. The historical distinction between exclusive-use and on-call services also helped persuade GAO that an exclusive-use order under the on-call contract was beyond the scope of the original award.

GAO noted that there was competitive prejudice because the protesters “did not anticipate that their on-call daily availability, flight hour, and mobilization rates would become ceiling prices for a task order competition for the exclusive-use services, something that had not been done previously.” If they had known, they would have structured their pricing differently.

What to make of this decision, then? It certainly seems as if the agency got tired of the cycle of protests and decided to stick with its existing, on-call procurement in order to fit the acquisition needs that had been met by the exclusive-use solicitation. In other words, BLM tried to fit a round peg (the exclusive-use need) into a square hole (the on-call contract vehicle). In the world of multiple-award contracts, such a practice is not allowed.

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