GAO sustained a pre-award protest brought by several potential offerors that argued that a solicitation for a task order sought services outside the scope of the relevant IDIQ contract. The agency had canceled its original solicitation following two protests because it lacked time to reevaluate proposals and make new award determinations before the 2017 wildfire season.
The Department of the Interior (DoI or Agency) issued a task order RFP for exclusive-use single engine air tanker (SEAT) flight services for all needs during the 2017 wildfire season under the on-call IDIQ contracts. An exclusive-use RFP for these services required the contractor’s aircraft and services to be reserved for exclusive use during specific time periods in specific locations. On the other hand, on-call contracts gave contractors the option to accept or decline Agency’s request for contractor’s aircraft and services. The on-call procurement was considered for “surge capability” during the wildfire season.
Several potential offerors protested the task order RFP for exclusive-use services, arguing that the services required under an exclusive-use contract are beyond the scope of the oncall IDIQ contracts because the services are materially different. Although GAO generally will not hear protests of task orders valued under $10 million, a challenge to the scope of a task order remains within GAO’s jurisdiction regardless of value.
GAO examined whether the task order in question is materially different from the contract, which may be found by “reviewing the circumstances attending the original procurement; any changes in the type of work, performance period, and costs between the contract as awarded and the order as issued; and whether the original solicitation effectively advised offerors of the potential for the type of orders issued.”
GAO found that the task order RFP was materially different from the on-call contracts, in spite of the similarity of the services. Protesters could not have anticipated a task order competition for extended, guaranteed periods of performance when they submitted proposals for the on-call IDIQ contract, and they were not on notice that their on-call pricing would be treated as a ceiling price for a later task order for exclusive-use work. Also, the Agency’s own historical procurement record shows that they believed these services to be distinct, as they previously contracted for them separately.
Takeaway: Even a task order for seemingly identical services may be out of scope if the agency has historically distinguished them, or the terms of the services are materially different.