The GAO ordinarily lacks jurisdiction to consider a protest of a task or delivery order under a DoD multiple-award contract unless the value of the order exceeds $25 million.
In a recent bid protest decision, the DoD confirmed that the 2017 National Defense Authorization Act upped the jurisdictional threshold for DoD task orders from $10 million to $25 million.
The GAO’s decision in Erickson Helicopters, Inc., B-415176.3, B-415176.5 (Dec. 11, 2017) involved a solicitation under the U.S. Transportation Command’s Trans-Africa Airlift Support multiple-award IDIQ contract. The agency sought to procure personnel recovery, casualty evaluation, and airdrop services in various parts of Africa.
In May 2017, the agency issued a task order RFP to all three IDIQ contract holders. After evaluating proposals, the agency awarded the order to Berry Aviation, Inc. AAR Airlift Group, Inc., an unsuccessful offeror, filed a protest challenging the award.
The agency directed Berry to suspend performance of the task order pending the outcome of AAR’s protest. But in the interim, the agency issued a sole source order to Berry to provide the same services.
In August 2017, three days after the agency issued its sole source justification, Erickson Helicopters, Inc. filed a protest challenging the sole source award to Berry. Erickson alleged, in part, that the award to Berry was flawed for various reasons, such as that Berry did not provide fair and reasonable pricing.
The GAO wrote that, under statutory authority modified by the 2017 NDAA, “our Office is authorized to hear protests of task orders that are issued under multiple-award contracts established within the Department of Defense (or protests of the solicitations for those task orders) where the task order is valued in excess of $25 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract.”
In this case, many of Erickson’s arguments did not allege that the task order increased the scope, period, or maximum value of the underlying IDIQ. After a detailed analysis, the GAO concluded that the total value of the task order would be “no more than $23,189,823.90.” This amount, GAO said, “is less than the $25 million threshold necessary to establish the jurisdiction of our Office.”
GAO dismissed these portions of Erickson’s protest.
For many years, the GAO had jurisdiction over DoD task order protests valued in excess of $10 million. But in the 2017 NDAA, Congress upped the threshold to $25 million. This significantly varies from the threshold for orders under civilian IDIQs, which remains at $10 million.
It’s easy for prospective protesters to get tripped up by these jurisdictional rules. Jurisdiction may not be the most exciting topic in the world, but anyone wishing to protest a task or delivery order at the GAO must consider whether the GAO has jurisdiction.
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