CLARIFICATION March 14, 8:40 a.m.: This article has been updated with information that the GAO has always had the ability to hear IDIQ protests on the grounds that the order exceeds the IDIQ scope or IDIQ maximum value, even if such protests aren't typically sucessful.

Vendors wanting to protest task or delivery orders worth more than $10 million made under indefinite delivery, indefinite quantity contract vehicles at civilian agencies will no longer be able to do so after May 27.

At least, that'll be the case unless Congress moves before then to prolong the current law permitting protests of IDIQ orders worth more than $10 million to the Government Accountability Office, a redress contractors first received with passage of the fiscal 2008 defense authorization bill.

Congress may have intended with the fiscal 2011 defense authorization bill to prolong that authority across the entire government until the end of fiscal 2016--but whether by accident or not, the legislation as approved into law prolongs it until then for Title 10 agencies only, i.e., the military services and Defense Department. GAO IDIQ protest authority for NASA and the Coast Guard procurements were also pronlonged by the fiscal 2011 authorization law, congressional sources said.

Sen. Joe Lieberman (I-Conn.) introduced March 7 a bill (S. 498) that would prolong that authority for civilian agency procurements, also until the end of fiscal 2016. Rep. James Lankford (R-Okla.) introduced an almost exactly similarly-worded bill (H.R. 899) March 3. 

Trey Hodgkins, vice president for national security and procurement policy at industry group TechAmerica, said the chances for passage of the bills before the current authority expires is good. The fiscal 2011 defense authorization bill probably didn't act to prolong the protest authority for civilian agencies because of the uncertainty surrounding its passage last year, he said. "I'm presuming that there was simply insufficient time to vet that proposal with other jurisdictions," he added.

The original law authorizing the GAO to hear protests for IDIQ orders worth more than $10 million was passed during a time of concern over whether IDIQs were being used by the government to limit competition. The law has proved unpopular among agency procurement officials who contend that since IDIQs contract slots themselves are awarded through full and open competition, a subsequent narrowing of the competitive field and protest mechanisms is a necessary compromise that allows the government to effectively order goods and services.

GAO has always been permitted to consider a protest about a multiple award contract order on the very specific grounds that the order increases the scope, period, or maximum value of the multiple award contract. However, a company with a slot on an IDIQ  that decides to challenge issuance of an order to a fellow slot holder on those grounds will likely lose, since the basis for upholding those protests is evidence that an agency in effect made a new procurement without proper competition. IDIQs by definition are written to be broad in scope since their purpose is to give agencies procurement flexibility. 

Before the law's passage, the only other possible recourse a vendor had if it was dissatisfied with the outcome of competition conducted among IDIQ contract holders--what's known as the fair opportunity process--was to file a Contract Disputes Act claim on the grounds that the agency managing the contract vehicle did not correctly implement the fair opportunity process.

However, contracting officers, contracting boards of appeals and the Court of Federal Claims instantaneously dismiss CDA claims they believe to be a thinly disguised protest. And because a CDA claim must be a claim--primarily a demand for money based on difficult-to-prove projections of lost revenue, and not a request for the government to re-evaluate fair opportunity proposals--vendors often find the CDA to be an ineffective source of redress anyway.

For more:
- go to section 16.505 of the Federal Acquisition Regulation, where the language about GAO protests is codified
- go to fiscal 2011 defense authorization law; the language extending GAO protest authority to Title 10 agencies only is in section 825

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