GAO Task Order Protests – How is the $25 Million Dollar Threshold Determined?
by Barbara Kinosky, Managing Partner
Under 10 U.S.C. 3406(f)(1), the GAO has jurisdiction to hear a protest of the issuance or proposed issuance of a task order if one of two conditions are met: first, if the protester alleges that the order increases the scope, period or maximum value of the underlying IDIQ contract or if the protester challenges an order valued in excess of $25 million for DOD, NASA or Coast Guard procurements. The threshold is $10 million for protests of task orders issued by civilian agencies. How is that value determined?
Els, Inc. protested a Navy contract award to GreenXT. Els total price was over $30 million. The Navy argued that the appropriate way to determine the task order value is the value of the task order as awarded. The GAO agreed with the Navy. They held that the value of a task order can also include all options where the government evaluated the total price including option years. In this protest, the total task order award to GreenXT including all options was less than $25 million. Els protest was dismissed for lack of jurisdiction.
In another protest, the protester, Duro Health, alleged that the task order the Air Force was issuing was outside the scope of the IDIQ contract and should have been solicited under another contract vehicle. The GAO held they had jurisdiction over the issue but the protester still lost.
The Els protest decision explains the jurisdictional roadmap pretty well in a somewhat murky area of the law.