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GAO: Agency Erred By Issuing Out-of-Scope Task Order

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Koprince Law LLC

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An agency’s task order award was improper because the order was outside the scope of the underlying IDIQ contract.

In Threat Management Group, LLC, GAO sustained a protest holding that the Air Force violated the Competition in Contracting Act by issuing a task order for some work beyond the scope of the awardee’s IDIQ contract. GAO’s decision highlights the fact that an order must be within the scope of the underlying contract–and the award of an out-of-scope order can be successfully challenged in a bid protest.

The Threat Management Group decision involved a single-award IDIQ contract held by R3 Strategic Support Group, Inc. The IDIQ contract permitted R3 to provide explosive ordnance disposal (“EOD”) support services and training at various Air Force bases. Task orders issued under the IDIQ simply described the work as “EOD Support Services” in accordance with the IDIQ’s statement of work.

Threat Management Group, LLC had been performing a separate Air Force contract to perform contingency training services. Under its contract, TMG employed 13 individuals, who provided training and other support services.

In anticipation of the expiration of TMG’s contract, the Air Force contacted R3 about obtaining training services. The Air Force subsequently issued a task order, numbered 76 (and referred to in the GAO’s decision as “TO 76”) to R3. TO 76 called for R3 to provide 13 individuals–the same number of individuals required under TMG’s incumbent contract.

R3’s IDIQ contract was for EOD support services. Some of work under TO 76, however, involved providing “controlled area training to Flight personnel,” “chemical, biological, radiological, and nuclear capability training,” and “medical training mannequin” – all seemingly outside the scope of the underlying IDIQ contract.

Upon learning of the task order award to R3, TMG filed an agency-level bid protest. When the Air Force denied the agency-level protest, TMG protested at the GAO.

The GAO wrote that the Competition in Contracting Act ordinarily requires full and open competition. Therefore, “[w]here an agency issues a task order for work that is beyond the scope of the contract originally awarded, the agency violates CICA.” This is because “the agency has subverted competition by awarding without competition work that would otherwise be subject to the statutory requirement for full and open competition.”

In determining whether a task order is beyond the scope of the contract, GAO “looks to whether there is a material difference between the task order and contract.” GAO explained that it considers “the circumstances attending the procurement that was conducted;… any changes in the type of work, performance period, and costs between the contract as awarded and as modified by the task order; and… whether the original contract solicitation adequately advised offerors of the potential for the type of task order issued.”

Under R3’s IDIQ contract “R3 is only permitted to provide training .  . . on ‘demolition and handling of explosives in accordance with [various] directives'” and related matters. TO 76 did not have a separate PWS. GAO reviewed R3’s monthly progress reports, and determined that R3 was performing services such as “training and refresher courses for Flight cadre; improved instructor expertise,” and providing a new “medical training mannequin” for medical training scenarios.

GAO wrote that some of the services described in R3’s monthly reports do “not appear to fall within the scope of the underlying PWS.” GAO sustained TMG’s protest, and recommended that the Air Force cancel TO 76 and re-determine the scope of services and number of personnel required to ensure the task order fell within the scope of the underlying contract.

As noted in a previous blog post, agencies have rather broad discretion to use BPAs, IDIQs and other vehicles to obtain good and services. However, as the Threat Management case again illustrates, that discretion is not unlimited. Even if an agency omits a PWS for a specific task order, the GAO will review other evidence to determine if the task order was out-of-scope. An order exceeding the scope of the underlying IDIQ contract violates CICA.


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