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.

The MayaTech Corporation, B-419313 (Nov. 9, 2020), involved the Department of Health and Human Services’ (HHS) issuance and award of a $8,403,926 task order for technical assistance and logistics support services under a Program Support Center (PSC) multiple-award IDIQ contract.

The task order’s solicitation anticipated award on a best-value tradeoff basis, considering four technical evaluation factors: (1) personnel qualification and organizational capacity; (2) technical approach; (3) understanding the issues and scope of work; and (4) section 508 compliance. The original solicitation said that technical factors 1 through 3 would be evaluated based on a “point method” to assign a numerical rating of 0 to 100 points for each technical proposal. But it was subsequently amended three times.

HHS’s first amendment provided the point distribution for each technical factor. The second amendment provided evaluation details for each factor and announced that HHS would evaluate technical proposals under a color/adjectival coded rating scheme. HHS’s third and final amendment, however, got rid of the technical factors’ adjectival rating scheme altogether.

Once MayaTech learned it was not the awardee, it challenged HHS’s evaluation and award under the task order. Specifically, the protester alleged that HHS failed to provide it with a fair opportunity to compete and unreasonably altered the scope of the underlying IDIQ contract because the award decision was contrary to the IDIQ’s ordering clause and the task order solicitation’s terms.

The ordering clause said that task orders would be issued in accordance with Federal Acquisition Regulation (FAR) 16.505(b). Based on this, the protester said that HHS was required to base the award on the solicitation’s evaluation terms. The protester argued that HHS, instead, “materially changed the scope of the base multiple award IDIQ task order” and “effectively rewrote the base IDIQ contract” by removing this “material requirement” from the ordering clause. It argued that this was not something the original base IDIQ offerors could have anticipated. Finally, the protester concluded that it would have received the highest score and, ultimately, the award, under the original evaluation scheme.

HHS sought dismissal of the protest, arguing that the protester did not demonstrate that the task order increased “the scope, period, or maximum value of the contract under which the task order was issued.” HHS argued that the protest was actually a challenge to the amendment changing HHS’s application of the evaluation criteria (not to an increase in scope of the original IDIQ). HHS said that, because of this, and because this task order was under $10,000,000, GAO lacked jurisdiction.

GAO ultimately agreed, citing 41 U.S.C. § 4106(f) and explaining:

Under the Federal Acquisition and Streamlining Act of 1994, as modified by the National Defense Authorization Act for Fiscal Year 2017, our Office is authorized to hear protests of task orders that are issued under multiple-award contracts established within civilian agencies (or protests of the solicitations for those task orders) where the task order is valued in excess of $10 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued.

GAO said that only those task orders “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.” It explained that, for protests related to the issuance of task orders, it has “consistently understood scope to refer to the scope of work authorized in the underlying contract.” GAO then clarified its standards for determining whether a task order is beyond the scope of the underlying contract, stating:

GAO and the courts look to whether there is a material difference between the task order and that contract. Evidence of such a material difference is found by reviewing the circumstances attending the procurement that was conducted; examining any changes in the type of work, performance period, and costs between the contract as awarded and as modified by the task order; and considering whether the original contract solicitation adequately advised offerors of the potential for the type of task order issued. The overall inquiry is whether the task order is of a nature that potential offerors would reasonably have anticipated.

Here, GAO noted that the protester did not contest: (1) that the task order was below the $10 million threshold; nor (2) that the task order exceeded the underlying IDIQ contract’s scope of work. Instead, GAO found that the protester’s “argument focuses on the manner in which the agency conducted the task order competition, which, in [protester]’s view, resulted in an increase of the scope of the base IDIQ contract.” But GAO was not persuaded by the protester’s “attempt to expand the definition of ‘scope'” here. GAO Said:

MayaTech’s expansive definition of “scope” would render the task order protest bar meaningless because any departure from the task order solicitation or underlying contract would result in a task order that exceeds the scope of the contract, and all protests related to task orders would fit within the “increases the scope” exception set forth in 41 U.S.C. § 4106(f).

GAO concluded that it lacked jurisdiction to hear MayaTech’s protest because it “reflects only its disagreement with the manner in which the agency evaluated the task order proposals-which the exception to the task order protest bar does not encompass.”

The protester’s reliance on the ordering clause here was a creative way to try to utilize the exception to GAO’s jurisdictional bar for task orders below the regulatory thresholds–but GAO didn’t buy it. However, this case did provide some (much-needed) guidance on what exactly GAO considers an “out of scope” task order for purposes of bid protest jurisdiction.

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