Task Order Exceeded The Scope Of The Contract; Protest Is Sustained

In this protest, the agency’s task order exceeded the scope of the underlying indefinite quantity contract, leading the GAO to sustain the protest.

In 2007, five ID/IQ (indefinite delivery/indefinite quantity) contracts were awarded to five contractors, one of which was Blackwater.  The scope of work for these contracts was limited to goods and services in support counter-narcoterrorism efforts.  But when the agency decided issued the task orders that became the subject of this protest, the agency sought mentoring and training services for the Afghan Ministry of the Interior and Afghan National Police.  The protester argued that the task orders were not issued to fight narcoterrorism, but rather to bolster the Afghan security forces.

Historically, the GAO has not reviewed task order protests except in very limited situations.  However, the Federal Acquisition and Streamlining Act of 1994 (FASA) was modified in 2008 by the National Defense Authorization Act of  Fiscal Year 2008.  With this amendment, the GAO now will review task order protests when: (a) the task order is valued in excess of $10 million, or (b) when the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the task order is issued.

In assessing whether the task order exceeds the scope of the underlying contract, the GAO and the courts look to whether there is a material difference between the task order and the underlying contract.  Here, the GAO found that the underlying ID/IQ contracts did not contemplate providing the type of services requested by the task orders.  The vast majority of the task order services involved training the Ministry of the Interior and Afghan National Policy in support of their missions to provide general law enforcement and fighting the insurgency.  Thus, the task orders were outside the scope of the ID/IQ contracts whose primary purpose was to fight narcoterrorism.

The GAO sustained the protest and ordered the agency to reimburse the protester for the reasonable costs of filing and pursuing the protest.  The GAO recommended that the agency either cancel the task orders and recompete the services under full and open competition, or prepare the appropriate justification required by the Competition in Contracting Act to limit competition.

DynCorp International LLC, B-402349, March 15, 2010.