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Posted on Monday, January 27, 2014

Know How to Enforce Your Rights For Winning Task Orders

Although task order contracts are common, the rights contractors have to win one are complex and vary widely depending on whether the task orders are under FAR Part 8, the GSA Federal Supply Schedule (FSS) or FAR Part 16, Government-wide Acquisition Contracts (GWAC). It is important, therefore, to know exactly what your rights are under your specific contract – FSS contract or a GWAC – and  how to enforce them, as a recent decision of the Armed Services Board of Contract Appeals (ASBCA or Board) shows.

The decision deals with one significant difference between FAR Part 8 and FAR Part 16 task order competitions: the GWAC holder’s significantly limited right to challenge how an agency misuses the solicitation process.  Unlike FSS contract holders that have broad rights to protest to the Government Accountability Office (GAO) and the Court of Federal Claims (CFC), GWAC holders’ right to protest to GAO or the CFC is very limited. The Board’s decision is, therefore, significant because it shows that GWAC holders still can sue the government, not as a protest but as a claim under the contract’s Disputes clause.

PAW and Associates submitted a task order proposal under its GWAC with the National Guard, but the contracting officer refused to award a task order. PAW filed a claim under the contract’s Disputes clause arguing that the government did not evaluate PAW’s task order proposal fairly and honestly and, therefore, violated PAW’s right to a “fair opportunity” to be solicited and to be fairly evaluated. The Board agreed with PAW, and concluded that GWAC holders can file a claim to enforce their “fair opportunity” right.

This decision shows just one significant difference in the task order solicitation process. There are others that contractors must be aware of. For example, GWAC contract holders must be given a “fair opportunity” to be considered for ALL task orders over $3,000.  In contrast, not all contractors on a particular GSA Federal Supply Schedule have to be solicited; although FSS Requests for Quotations over $150,000 must be posted on e-Buy, a contracting officer has the alternative of simply trying to get quotes from at least three Schedule vendors seeking a FAR Part 8 task order.

These differing and complex rules affect significant contractor rights to future business. The lawyers at Berenzweig Leonard LLP have decades of experience working with these rules and helping government contractors understand and enforce their rights.

Terry O’Connor is the Director of  Government Contracts with Berenzweig Leonard, LLP, a DC region business law firm. Terry can be reached at toconnor@BerenzweigLaw.com.

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