Monday, March 5, 2012


Thanks to the National Defense Authorization Act (NDAA) for Fiscal Year 2012, the rule on IDIQ task order bid protests is that protests alleging the order exceeds the scope, period or maximum value of the IDIQ contract are permitted at GAO or the Court of Federal Claims (COFC).  And, not or, protests based on any other grounds are permitted if the value of the order exceeds $10 million, but those protests must be filed at GAO.  This law has a sunset date of September 30, 2016.  The NDAA for FY 2011 contained similar language which then applied only to DOD, NASA and Coast Guard contracts.  If nothing changes and the sunset provision kicks in, it is likely GAO and the COFC will determine the failure to extend the sunset date creates an unrestricted right to protest task orders.

Does any of this apply to size protests?  We are unaware of any small business size protest rules that are implicated by the rules established for bid protests.  So, can one protest the size of a small business at the time of award of a task order under an IDIQ contract?  No, unless the IDIQ contractor was required to recertify its status prior to the award of the task order.  That's because a business that qualifies as a small business at the time it receives "a contract" is considered a small business throughout the life of that contract.  There are exceptions involving mergers, multiple award schedule contracts and BPA's (which are not contracts until a delivery order is issued).  Follow on or renewal contracts are new contracts and therefore require a new certification.

Don't forget, in negotiated procurements, a size protest must be received by the contracting officer prior to the close of business on the 5th day, exclusive of Saturdays, Sundays and legal holidays, after the contracting officer notifies the protester of the identity of the prospective awardee.

A task order under an IDIQ contract is not a new contract.  If the contracting officer did not request a new self-certification for the task order (ask to find out), a size protest under an IDIQ contract can be timely filed only under the 5 day rule for negotiated contracts at the time the original IDIQ contract was awarded.  However, since the time limits do not apply to the contracting officer or the SBA itself, you may always write a letter requesting that size be investigated even after the IDIQ contract is awarded.

The ever more popular BPA's are another matter.  Size is determined at the time of the first delivery order when the contract actually comes into existence.

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