Army disputes GAO take on protests

Agency officials are pushing back against the Government Accountability Office’s new authority to hear protests of the officials' task and delivery orders as they explore the power’s limits.

Under a decision made Oct. 30 on a protest of a task order awarded in July, Army officials told GAO that contractors competing for orders can file a protest regarding the order’s initial solicitation but they didn’t have a right to challenge the rationale for the award. That was off-limits, the service officials told GAO, according to the decision. GAO released the decision on Nov. 10.

Meanwhile, GAO officials took a different position. They say contractors now can protest an agency’s decision under the fiscal 2008 National Defense Authorization Act. The law opens for protest all parts of an agency’s order.

In the protest, Triple Canopy, a security and crisis management company, charged the Army’s award of a task order for security services at a base in northern Iraq. Triple Canopy charged that the service didn’t follow through with the solicitation in its award.

Although GAO denied the protest, its decision sketched out more of its authority regarding task and delivery order protests, a new authority since June.

“We view the NDAA’s authorization to consider protests of task orders in excess of $10 million as extending to protests asserting that an agency’s award decision failed to reasonably reflect the ground rules for the task-order competition,” GAO wrote in the decision.

GAO added that Congress didn’t establish a system that requires agencies to tell contractors about competitions, enforces that provision through bid protests “but provides no similar enforcement authority to ensure that agencies actually act in accordance with the guidance they are required to provide.”

The Army is concerned that GAO’s position will “effectively graft the Federal Acquisition Regulation Part 15 requirements” onto the task order process, according to the decision document.

FAR Part 15 regulations govern competitive and noncompetitive negotiated acquisitions, They include the proposals, awards and notifications to contractors about the acquisition.

GAO also acknowledged some of those FAR rules may apply differently to task orders and other procurements.