Individual Task Orders under IDIQ Procurements
FAR Part 16.5

GAO
U.S. Court of Federal Claims
Agency
Automatic Stay? Yes
For pre-award protests, the agency must suspend award of the contract once it receives notice from GAO that a protest has been filed. FAR 33.104(b).

For post-award protests, the agency must suspend performance if it receives notice of the protest from GAO within 10 days after contract award or within 5 days after the debriefing date offered to the protester for requested and required debriefings, whichever is later.  FAR 33.104(c).  Debriefings are required for orders in excess of $5.5 million. FAR 16.505(b)(6).

 
In DoD procurements, for debriefings requested and required under FAR 15.506(d), contracting officers must provide an opportunity for unsuccessful offerors to submit additional questions within 2 business days of receiving a debriefing. The agency then has 5 business days to respond in writing. 10 U.S.C. § 2305(b)(5). The 5 day filing period to trigger an automatic stay does not start until after the agency delivers the written responses. 31 U.S.C. § 3553(d)(4).
Automatic Stay? No
In order to obtain a stay, the protester must file a motion for preliminary injunction, demonstrating that: (1) it is likely to succeed on the merits of its protest; (2) it will suffer irreparable harm absent an injunction; (3) granting the injunction will serve the public interest; and (4) the harm the protester will suffer absent the injunction out weighs the harm to the Government and third parties caused by the injunction.
Automatic Stay? Yes
For pre-award protests, the agency must suspend award of the contract until it has resolved the protest. FAR 33.103(f)(1)

For post-award protests, the agency must suspend performance so long as it receives the protest within 10 days after contract award or within 5 days after the debriefing date offered to the protester under a timely
debriefing request in accordance with FAR 15.505 or 15.506, whichever is later. FAR 33.103(f)(3).

 
Pursuing an agency protest does not extend the time for obtaining a stay at GAO; however, agencies may voluntarily agree to continue a stay during a subsequent GAO or COFC protest. FAR 33.103(f)(4).
Jurisdictional Timelines:
A pre-award protest based on improprieties in the RFP that are apparent prior to receipt of proposals must be filed prior to the time set for receipt of initial proposals. Improprieties subsequently incorporated into the solicitation must be protested by the next closing time for receipt of proposals following incorporation. 4 C.F.R. § 21.2(a)(1). Where a basis for challenging the terms of a solicitation does not arise until after proposal submission, a protest is due 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(a).
A post-award protest must be filed not later than 10 days after the date on which the required debriefing was held, but not before the offered debriefing date. 4 C.F.R. § 21.2(a)(2). Debriefings are required for task orders exceeding $5.5 million. FAR 16.505(b)(6). For DoD, 10 days run from when DoD answers timely "additional questions."
For all other protests not covered above, the protester must file its protest not later than 10 days after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. § 21.2(a)(2).
Jurisdictional Timelines:
There are no strict timelines for filing a protest, and the GAO timeliness rules do not apply in the COFC. However, a protester waives a challenge to a patent error in the RFP if it has not raised it with the government prior to the time set for receipt of proposals (the “patent ambiguity” rule). Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007).
A lengthy delay in filing may affect the protester’s ability to obtain a preliminary injunction and may also result in the court's barring the protest under the doctrine of laches. Reilly v. United States, 104 Fed. Cl. 68, 78 (2012).
Jurisdictional Timelines:
A pre-award protest based on alleged apparent improprieties in the RFP must be filed before bid opening or the closing date for receipt of proposals. FAR 33.103(e).
All other protests must be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. FAR 33.103(e).
 
Agencies may supplement FAR 33.103(e) filing deadlines with their own more stringent requirements.
Subject Matter Jurisdiction Limits:
A GAO protest of an order issued by DoD, NASA, or the Coast Guard valued in excess of $25 million may be brought on any grounds. 10 U.S.C. § 2403c(e)(1)(B). A GAO protest of an order issued by other civilian agencies valued in excess of $10 million may be brought on any grounds. 41 U.S.C. § 4106(f)(1)(B).
If the value of a DoD, NASA, or Coast Guard order is less than $25 million, or the value of a civilian order is less than $10 million, a protest may be brought only on the grounds that the order improperly increases the scope, period, or maximum value of the contract. 10 U.S.C. § 2304c(e)(1)(A); 41 U.S.C. § 4106(f)(A).
All other task order/delivery order protests are barred.
Subject Matter Jurisdiction Limits:
The COFC may only hear a protest if (1) the protest is based on the ground that the task order improperly increases the scope, period, or maximum value of the underlying contract, or (2) the protest is challenging something other than the “issuance or proposed issuance” of a task order, such as the modification of a task order. See SRA Int’l v. United States, 766 F.3d 1409, 1413 (Fed. Cir. 2014); Global Computer Enters. v. United States, 88 Fed. Cl. 350, 410-12
(2009).
Subject Matter Jurisdiction Limits:
An agency has jurisdiction to hear a protest of a task order only if (1) the protest is based on the ground that the task order improperly increases the scope, period, or maximum value of the underlying contract, or (2) the protest is challenging something other than the “issuance or proposed issuance” of a task order, such as the modification of a task order. 10 U.S.C. § 2304c(e)(1)(A); 41 U.S.C. 4106(f)(A).
An offeror may file a non-protest “complaint” with the agency’s task-order or delivery-order ombudsman. FAR 16.505(b)(8). The ombudsman must review the complaint and ensure the offeror was afforded a fair opportunity to be considered for the order, consistent with the procedures in the contract. For orders exceeding $5 million, the FAR specifies procedural requirements that constitute a fair opportunity to be considered. FAR 16.505(b)(1)(iv).
Process for Appealing Unsuccessful Decision:
A Request for Reconsideration may be filed at GAO not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier. 4 C.F.R. § 21.14.
A protester may “appeal” a GAO decision addressing a protest alleging that the task order increased the scope, period, or maximum value of a contract by filing suit in the Court of Federal Claims alleging that the agency’s procurement was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). There is no strict timeline for filing such an “appeal.”
Process for Appealing Unsuccessful Decision:
A protester may appeal a COFC decision to the U.S. Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Federal Circuit within 60 days after the date of entry of judgment. 28 U.S.C. §§1295(a)(3); 2107(b); 2522. COFC Rule 58.1; FRAP Rule 3; CAFC Rules 3 and 4 (Practice Notes).
The Federal Circuit reviews the COFC’s determination on the legal issues without deference, applying the same “arbitrary and capricious” standard under the APA as that applied by the COFC, i.e., whether the agency’s procurement decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
Process for Appealing Unsuccessful Decision:
A protester may seek independent agency review of the contracting officer’s decision on a protest. Independent agency review does not extend GAO’s timeliness requirements. FAR 33.103(d)(4).
A subsequent protest challenging an order on the grounds that it increases the scope, period, or maximum value of the contract may be filed at GAO so long as it is filed within 10 days of actual or constructive knowledge of initial adverse agency action, provided the agency protest was timely filed under the agency rules. FAR 33.103(d)(4) (citing 4 C.F.R. § 21.2(a)(3)).
A subsequent protest challenging an order on the grounds that it increases the scope, period, or maximum value of the contract may be filed at the Court of Federal Claims by alleging that the agency’s procurement was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). There is no strict timeline for filing such an “appeal.”

The information contained in this chart is not intended to serve as legal advice related to any individual situation. This material is made available for informational purposes only and is current as of July 2018.  

PROCUREMENT TYPE
Chart 1 (Contracts)
Chart 2 (IDIQ Task Orders)
Chart 3 (GSA FSS Task Orders)
 
Download Printable PDF


Areas of Law
Government Contracts Litigation
Procurement Compliance and Counseling
Internal and Government Investigations
Regulatory and Appellate Litigation
Our Firm
Frankel PLLC Overview
Attorneys
Practice Areas
Contact Us
Address
1707 L Street, N.W., Suite 500
Washington, D.C. 20036

Phone
202.293.6840
Fax
202.293.6842
© 2018 Frankel PLLC All rights reserved. | Legal Notices