In this protest, the protester challenged the award to its higher priced competitor. The agency argued that the GAO did not have jurisdiction to review the protest because the procurement involved a task order. The GAO found that it did have jurisdiction, and it ruled in favor of the protestor on the merits.
In many instances, Congress has denied the GAO protest jurisdiction over the award of task orders. However, a couple exceptions have developed whereby the GAO will accept jurisdiction over a task order award.
One exception is when the task order exceeds the scope of the underlying multiple award schedule (MAS) contract. That is, when the task order is awarded for services or supplies not specifically covered in the underlying MAS contract, then that task order exceeds the scope of the MAS contract and the GAO likely will assume jurisdiction and rule that the task order was not awarded in accordance with full and open competition. Under this exception to the general rule, the GAO will assume jurisdiction when “the protester can show that the order exceeds the scope, term, or maximum value of the task order or delivery order contract.”
In this protest, the protester did not argue that the task order exceeded the scope, term, or value of the underlying contract, so this did not provide a basis for the GAO to assume jurisdiction.
A second more recent exception has been established by Congress for task orders that exceed $10 million. That is, if the task order exceeds $10 million, then the GAO is able to assume jurisdiction over the procurement notwithstanding the general lack of authority over task order awards. This exception was established by Section 843 of the 2008 Defense Authorization Act.
In this protest, the value of the award was only $45,150. Thus, the GAO could not assume jurisdiction based on the dollar value of the award as long as the award was considered a task order issued pursuant to a task order contract. And that is where the GAO decision then focused: What is a task order issued under a task order contract?
As the GAO explored the facts of the protest, it became clear that the agency was awarding this “task order” under something it called a Forest Service FERM BPA (Blanket Purchase Agreement). The Forest Service argued that the FERM BPA was functionally equivalent to a task order contract. In reviewing the definition of “task order” under the relevant statute, the GAO found inter alia that, in order for something to be considered a task order contract, it must be an enforceable contract that requires the government to order at least the stated minimum quantity of supplies. In contrast, a BPA is generally not a contract, and a BPA does not obligate the agency to enter into future contracts with the agency.
Here, the GAO found that what was being awarded was a so-called “task order” issued under a BPA, not a task order issued under a task order contract. Thus, the general prohibition against GAO review of task orders did not apply here. In assuming jurisdiction, the GAO considered the merits of the protest and ruled in favor of the protester.
C& B Construction, Inc., B-401988.2, January 6, 2010