Petrillo: New rules tighten task orders

Provisions of the 2008 Defense Authorization Act address concerns about task orders issued through umbrella contracts

The 2008 Defense Authorization Act has important reforms for task- and delivery-order contracts. The changes set minimum standards for orders that exceed $5 million, create protest rights for orders valued at more than $10 million and set a ceiling on the size of single-award contracts.

In creating those provisions, Congress was responding to audits and reports that criticized the way agencies placed orders under these umbrella contracts. The new rules apply to all federal agencies, not only the Defense Department. They were added to the Federal Acquisition Regulation by an interim regulation published Sept. 17. 

So how do they change the day-to-day work of contracting?

For one, there are more strict competition requirements on orders that exceed $5 million. Agencies must provide all interested contractors with a solicitation that includes a clear statement of the agency’s requirements, a reasonable period to respond with a proposal, and disclosure of the significant evaluation factors, subfactors and their relative importance.

In addition, the procuring agency must provide all contractors with documentation of the basis for the award and, if requested, a post-award debriefing. As a result, the award of a major task order now has some of the same safeguards as a standard contract negotiated under Part 15 of the FAR.

The protest provisions have a $10 million threshold. The Acquisition Advisory Panel had called for protest rights to kick in at $5 million, but Congress chose the higher number.

Only the Government Accountability Office has the authority to hear protests of the award of orders that exceed $10 million. The Court of Federal Claims, which can hear most other protests, wasn’t included in this provision.

What kinds of protests are likely to find favor at GAO?  For one thing, contractors can use protests to enforce the new competition rules. If an award decision isn’t properly documented or if the reason for the award departs from the stated evaluation criteria, expect GAO to uphold a protest.

The same is probably true of the law’s other strictures. If the requirement statement isn’t clear, or there isn’t enough time to respond, or if the evaluation factors aren’t stated and ranked, then GAO might uphold a protest.

Beyond that, GAO’s track record on protests of GSA schedule orders shows what the agency is likely to do with task and delivery orders. GAO will generally look for agencies to conduct a fair acquisition. The offerors should get equal treatment in proposal evaluation and the scope and accuracy of discussions.  If not, then GAO will probably sustain a protest.

With the issuance of the interim FAR regulations, the new rules should be fully implemented. The result will be more fair and transparent process for awarding task and delivery orders.

Petrillo is a lawyer at Washington law firm Petrillo and Powell. He can be reached at jp@petrillopowell.com.

The Fed 100

Save the date for 28th annual Federal 100 Awards Gala.

Featured

  • computer network

    How Einstein changes the way government does business

    The Department of Commerce is revising its confidentiality agreement for statistical data survey respondents to reflect the fact that the Department of Homeland Security could see some of that data if it is captured by the Einstein system.

  • Defense Secretary Jim Mattis. Army photo by Monica King. Jan. 26, 2017.

    Mattis mulls consolidation in IT, cyber

    In a Feb. 17 memo, Defense Secretary Jim Mattis told senior leadership to establish teams to look for duplication across the armed services in business operations, including in IT and cybersecurity.

  • Image from Shutterstock.com

    DHS vague on rules for election aid, say states

    State election officials had more questions than answers after a Department of Homeland Security presentation on the designation of election systems as critical U.S. infrastructure.

  • Org Chart Stock Art - Shutterstock

    How the hiring freeze targets millennials

    The government desperately needs younger talent to replace an aging workforce, and experts say that a freeze on hiring doesn't help.

  • Shutterstock image: healthcare digital interface.

    VA moves ahead with homegrown scheduling IT

    The Department of Veterans Affairs will test an internally developed scheduling module at primary care sites nationwide to see if it's ready to service the entire agency.

  • Shutterstock images (honglouwawa & 0beron): Bitcoin image overlay replaced with a dollar sign on a hardware circuit.

    MGT Act poised for a comeback

    After missing in the last Congress, drafters of a bill to encourage cloud adoption are looking for a new plan.

Reader comments

Please post your comments here. Comments are moderated, so they may not appear immediately after submitting. We will not post comments that we consider abusive or off-topic.

Please type the letters/numbers you see above

More from 1105 Public Sector Media Group