On November 17, 2020, the Government Accountability Office (GAO) dismissed the post-award task order protest of U.S. Information Technologies Corporation (USIT) for lack of jurisdiction.1 Task order protests related to Department of Defense (DoD) procurements can only be filed with GAO if (1) the order at issue increases the scope, period, or maximum value of the contract under which it is issued or, as it relates to the subject case, (2) the order is valued in excess of $25 million (for civilian agencies, the threshold, with certain exceptions, is $10 million). In USIT, the Defense Logistics Agency (DLA) awarded a task order valued at $24,993,820 for the base period and all option periods. In an attempt to establish jurisdiction, USIT argued that the true value of the order at issue was higher than $25 million. In its decision, GAO clarified the scope of its task order protest jurisdiction and identified a number of arguments that cannot be used to circumvent the same.
USIT offered three separate arguments as to why the task order at issue met the $25 million threshold. First, USIT argued that because the solicitation included Federal Acquisition Regulation (FAR) clause 52.217-8 – Option to Extend Services, DLA should have included the value of that 6-month extension in the task order awarded price, which, according to USIT, would have caused the task order to exceed $25 million. GAO rejected this idea, stating that FAR 52.217-8 will only be considered part of the task order value if vendors are actually required to submit prices for the 6-month extension and if the procuring agency actually evaluates the option—neither of which occurred in USIT.
USIT also argued that the task order should have been determined to exceed the jurisdictional threshold because, according to USIT, in order to meet the technical requirements in the solicitation the awardee should have submitted a higher price quotation. Again, GAO disagreed, explaining that USIT’s argument would require the issue of jurisdiction to be dependent on the merits of the protest. GAO clarified that the value of a task order is based only on the terms of the order itself, and not the substantive merits of a protest.
Finally, USIT claimed that the value of the task order should be considered higher because, based on discussions USIT had with the DLA, the task order may have been modified to include additional work. In rejecting this argument, GAO reiterated that the value of a task order for purposes of determining jurisdiction is the amount reflected in the order as awarded. In addition, GAO explained that in the absence of specific evidence that the agency had in fact modified the contract, GAO had no basis to assess whether such a modification should be considered as part of the value of the task order for purposes of determining jurisdiction.
Any government contractor thinking of protesting a task order, or facing a protest, should take note of this decision. As this case confirms, in order for GAO to have jurisdiction over a task order protest, it must first meet the applicable jurisdictional threshold, as determined only by the terms of the order itself. As this case shows, a difference of $6,180 between the awarded amount and the threshold is all it takes for the GAO to dismiss a protest for lack of jurisdiction.
If your company is considering submitting a protest, is the subject of a protest, or if you have any questions regarding the protest process, please contact Sam Finnerty or a member of PilieroMazza’s Government Contracts Group.
1. See U.S. Info. Techs. Corp., B-419265 (2020).