Link: GAO Opinion
Agency: Department of the Army
Disposition: Protest sustained.
Keywords: Task order request for proposal; Indefinite-delivery/indefinite-quantity contracts
General Counsel P.C. Highlight: An agency may not issue a task order that is outside the scope of the original ID/IQ contract. The fact that there may be some small overlap in the services in the task order with those required under the ID/IQ contracts does not permit an agency to purchase other services under the ID/IQ contracts that were not reasonably contemplated when the ID/IQ contracts were issued.
In 2007, the Department of the Army awarded five indefinite-delivery/indefinite-quantity (ID/IQ) contracts to five different firms. These ID/IQ contracts were the result of a request for proposals (RFQ) for program and operations support for the Department of Defense Counter Narcoterrorism Technology Program Office, an office that provides technology to federal agencies and partner nations engaged in counter-drug and counter-narcoterrorism operations. The scope of the work to be performed under the ID/IQ contracts, as stated in the performance work statement, was narrowly limited to providing the “necessary goods and services required … to support the counter-narcoterrorism mission….” While these goods and services were to be provided worldwide, the performance work statement also stated that the current “primary countries of interest” were Colombia and Afghanistan. The solicitation for the ID/IQ contracts also included three sample task orders that included sample performance work statements, in order to illustrate representative task order requests that would be awarded to the ID/IQ contract holders.
Following the award of the ID/IQ contracts, the Army issued two task order requests. DynCorp International, LLC, which does not hold one of the ID/IQ contracts with the Counter Narcoterrorism Technology Program Office, protested the issuance of these task order requests as being outside the scope of the underlying ID/IQ contracts.
The first task order request sought mentoring and training services for the Afghan Ministry of the Interior and Afghan National Police, while the second task order request sought facility maintenance and logistics support for the first task order request. (in particular, support for the Afghan National Police Development Program at 15 bases in Afghanistan). While the Afghan National Police consists of a variety of organizations related to law enforcement, safety, security and counter-insurgency activities, only two of these organizations have a mission directly involving counter-drug operations. A portion of the task order requests sought 100 mentors, with approximately 30 designated as key personnel; however, only one of these mentors was to provide training for the Afghan Border Police, the only included organization involved in counter-narcoterrorism operations. In fact, none of the descriptions of the mentoring and training tasks included in the task order requests described or mentioned responsibilities directly related to counter-narcoterrorism. As such, DynCorp alleged that the proposed task orders were outside the intended scope of the underlying ID/IQ contracts and should not have been issued.
GAO has always had jurisdiction over protests that allege that the task order increased the scope, period, or maximum value of the contract under which it was issued. Therefore, GAO had jurisdiction to consider DynCorp’s protest. In determining whether a task order is beyond the scope of the contract, GAO and the courts look to whether there is a material difference between the task order and the original ID/IQ contract.
The Army countered DynCorp’s allegations by stating that there was a nexus between the counter-insurgency activities (as described in the task order requests) and counter-narcoterrorism (as described in the underlying ID/IQ contracts) because the insurgency in Afghanistan is funded by drug trafficking, and therefore, any counter-insurgency organization is necessarily involved in countering illegal drug trafficking. The Army also argued that the language of the ID/IQ contracts was broad enough to include training for all police and Interior Ministry activities, and is not limited to counter-narcoterrorism.
GAO’s review of the record determined only a small portion of the requested training services in the first task order request related to counter-narcoterrorism or supported the counter-narcoterrorism mission of the Counter Narcoterrorism Technology Program Office. The fact that a small number of the requested services overlapped with those required under the ID/IQ contracts was not enough to permit the Army to purchase those services that were not reasonably contemplated when the ID/IQ contracts were issued. Furthermore, GAO’s review of the task order request for facilities maintenance relating to the first task order request revealed an even larger disconnect between the original ID/IQ contracts and the task order request, with the latter essentially representing a logistics contract to provide dining facilities, maintain water systems, provide HVAC services, and provide medical services.
GAO dismissed the Army’s argument that the services sought by the task order requests were within the scope of the ID/IQ contracts because the Afghan insurgency is largely funded by drug trafficking. Following a review of the ID/IQ contracts and the task order requests, the GAO concluded that the ID/IQ contract was narrowly tailored and did not provide for counter-insurgency support. GAO also rejected the Army’s argument that the sample task order requests provided in the solicitation for the ID/IQ contracts did not put potential offerors on notice that training outside of counter-narcoterrorism training could be provided. GAO’s review of the three sample task order requests in the ID/IQ revealed a clear connection between the activities or technology requested and counter-narcoterrorism operations.
As such, GAO sustained DynCorp’s protest, and recommended that the Army cancel the task order requests and either conduct a full and open competition for the services, or prepare the appropriate justification required by Competition in Contracting Act (CICA) to limit the competition.