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. 

In Duro Health, LLC, B-421947 (Nov. 30, 2023), GAO considered an Air Force task order proposal under Defense Health Agency’s (DHA) Medical Q-Coded Service (MQS) multiple award contract vehicle. DURO was not one of the MQS contract holders. The protester argued that instead of being solicited under the MQS IDIQ contract vehicle, the work should have been procured under United States Special Operations Command’s (USSOCOM) Preservation of the Force and Family Program (POTFF).

MQS is designed for “procurement[s] of health care staffing requirements,” including “physician, nurse, dental, and ancillary contract services” as well as “ancillary services” from health care workers. This particular task order sought “services of physical therapists, certified athletic trainers, performance dietitians, licensed clinical social workers, and strength and conditioning specialists.”

DURO’s main argument in its protest was that the “agency seeks services that are outside the scope of the MQS contract. The protester contends that the instant requirement is part of USSOCOM’s POTFF program, and as such, the services are beyond the scope of the MQS contract vehicle.”

As we’ve noted on the blog before, there are very specific requirements dealing with protests of task order proposals. Specifically, GAO can only review “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 under which the order is issued.” 10 U.S.C. § 3406(f). GAO, in reviewing scope, will examine “whether the order is materially different from the original contract, as reasonably interpreted.”

Here the dollar value of the task order was under $4 million. So, it seems like GAO would simply say, no jurisdiction. Not so fast. Here, the protester properly argued that the task order was not within the scope of the underlying MQS contract. Specifically, DURO argued “that the services sought are outside the scope of the underlying MSQ IDIQ contract,” so GAO found that “this protest is within our Office’s jurisdiction.”

However, the protester still lost. GAO determined that the “MQS IDIQ contract covers the provision of health care workers . . . in providing direct health care services to eligible beneficiaries” and the MQS solicitation specifically listed positions that were in this task order RFP, such as physical therapist and performance dietitian. Therefore, the scope of the MQS included the services sought under this task order, and GAO denied the protest.

GAO’s jurisdiction is limited when it comes to task orders. However, it will consider a protest that a task order expands the scope of the underlying IDIQ contract. Therefore, just because GAO had jurisdiction doesn’t mean the protest is won. Rather, GAO will look to the scope of the IDIQ contract to determine if the task order fits within it. It doesn’t matter if another IDIQ contract might work, too, only whether the IDIQ contract chosen by the agency fits the scope of the task order.

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