Wifcon.Forum Archives

To Contents	Protest of task order
By Anonymous on Wednesday, May 07, 2003 - 11:20 am: FAR Part 16 indicates that task order contract holders may not protest (under the provisions of FAR 33) the award of a specific task to another task order holder - except in very limited circumstances involving actions outside of the scope of the contract. FAR 33 addresses only protests to the agency and protests to the GAO. Is a task order contractor thus permitted to protest to the Court of Federal Claims? Does anyone know of an instance where the courts addressed such a protest - or rejected such a protest on the grounds that the protestor has no standing because of FAR 16? Any information/insight would be appreciated. By Anonymous on Wednesday, May 07, 2003 - 01:33 pm: The agency should have a designated ombudsman to review questions or concerns about the award of task under a task order contract. If you haven't, I would suggest you start there. By Anonymous on Wednesday, May 07, 2003 - 01:38 pm: Responding Anon. The FAR requires an ombudsman. However, the questions posed by the original anon still remain unanswered. By Anonymous on Wednesday, May 07, 2003 - 06:37 pm: I have forgotten the case name but I recall a COFC case from about a year or so ago where the court did follow the FAR in determining whether the task order was protestable. As I recall, the court allowed the protest (and then denied it, I think) but I can't recall why. Perhaps on the ground that the order at issue was not a multiple award task order as defined in the FAR. (Not all task orders are subject to the prohibition on protests.) If I remember the case name I'll try to post it here. By formerfed on Thursday, May 08, 2003 - 10:25 am: Anonymous of 5/7, Are you referring to the Labat-Anderson case where a BPA was awarded under FSS? The government argued that the court couldn't rule because of the task order exception. THe court disagreed saying the task order exception doesn't pertain to a BPA award. Except for that, that's all I found. Maybe someone with Westlaw will have better luck searching. By AnonYmus on Friday, May 09, 2003 - 09:53 am: All, This may be a reach, but is ASBCA No. 53489, August 2, 2002, relevant here? In that decision (Community Consulting International), the ASBCA held that (1) it had jurisdiction to decide a contractor's claim that US AID breached its duty under a multiple award ID/IQ contract to provide the contractor with a fair opportunity to be considered for task orders, and (2) the contractor was entitled to relief even though AID had satisfied the minimum quantity. As part of its decision, ASBCA rejected arguments that the contractor's claim was actually a bid protest outside the Board's jurisdiction, stating that US AID breached a contractual promise that all awardees would be given a fair opportunity to bid on all task orders. The breach of the fair opportunity represented a "triable issue". It also cited Burke Court Reporting Co. (DOTBCA No. 3058, 97-2 BCA 29,233) that the minimum order quantity "does not constitute the entirety of the government's legal obligations" under an ID/IQ contract. By GeneJ on Friday, May 09, 2003 - 12:50 pm: Two decisions that involve task order decisions leading to a downselection. Electro-Voice, Inc., B-278319 and Teledyne-Commodore, LLC, B-278408.3 GeneJ

Protest of task order

By Anonymous on Wednesday, May 07, 2003 - 11:20 am:

FAR Part 16 indicates that task order contract holders may not protest (under the provisions of FAR 33) the award of a specific task to another task order holder - except in very limited circumstances involving actions outside of the scope of the contract. FAR 33 addresses only protests to the agency and protests to the GAO. Is a task order contractor thus permitted to protest to the Court of Federal Claims? Does anyone know of an instance where the courts addressed such a protest - or rejected such a protest on the grounds that the protestor has no standing because of FAR 16?

Any information/insight would be appreciated.

By Anonymous on Wednesday, May 07, 2003 - 01:33 pm:

The agency should have a designated ombudsman to review questions or concerns about the award of task under a task order contract. If you haven't, I would suggest you start there.

By Anonymous on Wednesday, May 07, 2003 - 01:38 pm:

Responding Anon. The FAR requires an ombudsman. However, the questions posed by the original anon still remain unanswered.

By Anonymous on Wednesday, May 07, 2003 - 06:37 pm:

I have forgotten the case name but I recall a COFC case from about a year or so ago where the court did follow the FAR in determining whether the task order was protestable. As I recall, the court allowed the protest (and then denied it, I think) but I can't recall why. Perhaps on the ground that the order at issue was not a multiple award task order as defined in the FAR. (Not all task orders are subject to the prohibition on protests.)

If I remember the case name I'll try to post it here.

By formerfed on Thursday, May 08, 2003 - 10:25 am:

Anonymous of 5/7,

Are you referring to the Labat-Anderson case where a BPA was awarded under FSS? The government argued that the court couldn't rule because of the task order exception. THe court disagreed saying the task order exception doesn't pertain to a BPA award.

Except for that, that's all I found. Maybe someone with Westlaw will have better luck searching.

By AnonYmus on Friday, May 09, 2003 - 09:53 am:

All,

This may be a reach, but is ASBCA No. 53489, August 2, 2002, relevant here?

In that decision (Community Consulting International), the ASBCA held that (1) it had jurisdiction to decide a contractor's claim that US AID breached its duty under a multiple award ID/IQ contract to provide the contractor with a fair opportunity to be considered for task orders, and (2) the contractor was entitled to relief even though AID had satisfied the minimum quantity.

As part of its decision, ASBCA rejected arguments that the contractor's claim was actually a bid protest outside the Board's jurisdiction, stating that US AID breached a contractual promise that all awardees would be given a fair opportunity to bid on all task orders. The breach of the fair opportunity represented a "triable issue".

It also cited Burke Court Reporting Co. (DOTBCA No. 3058, 97-2 BCA 29,233) that the minimum order quantity "does not constitute the entirety of the government's legal obligations" under an ID/IQ contract.

By GeneJ on Friday, May 09, 2003 - 12:50 pm:

Two decisions that involve task order decisions leading to a downselection.

Electro-Voice, Inc., B-278319
and
Teledyne-Commodore, LLC, B-278408.3

GeneJ