DOES AUTOMATIC MEAN AUTOMATIC? THE APPLICABILITY OF THE CICA AUTOMATIC STAY TO TASK AND DELIVERY...

DOES AUTOMATIC MEAN AUTOMATIC? THE APPLICABILITY OF THE CICA AUTOMATIC STAYTO TASK AND DELIVERY ORDER BID PROTESTSAuthor(s): Ryan RobertsSource: Public Contract Law Journal, Vol. 39, No. 3 (Spring 2010), pp. 641-660Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/25755779 .

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DOES AUTOMATIC MEAN AUTOMATIC? THE APPLICABILITY OF THE CICA AUTOMATIC STAY TO TASK AND DELIVERY ORDER BID PROTESTS

Ryan Roberts

I. Introduction. 641 II. IDIQ Basics. 643

III. Unprotestability of IDIQ Contracts. 645 IV. Enhanced Competition for IDIQ Contracts. 647

A. Investigating the Problem. 648 B. Congressional Response. 649 C. Congressional Solution. 650

V. Applicability of the CICA Automatic Stay. 652 A. The Importance of the CICA Automatic Stay. 652 B. The Added Accountability of the CICA Stay Outweighs

Any Minor Delay. 653 C. There Is No Statutory Bar to the Application of

the Automatic Stay to Task and Delivery Orders. 656

VI. Conclusion. 660

I. INTRODUCTION

The Federal Acquisition Streamlining Act of 1994 (FASA)1 was meant

to streamline government procurement through the creation of an efficient

procurement mechanism, the indefinite-delivery, indefinite-quantity (IDIQ) contract.2 The statute was designed to "reduce staff time, lessen the amount

of paperwork required, and shrink the bureaucracy,"3 while generally increas

1. Pub. L. No. 103-355, 108 Stat. 3243 (1994). 2. Mason C. Alinger, The Impact of Procurement Provisions in Appropriations Acts of the Federal

Acquisition System, 36 Pub. Cont. L.J. 583, 586 (2007) (stating that the purpose of the Federal

Acquisition Streamlining Act of 1984 (FASA) was to streamline government acquisition). 3. A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 133 (2006) (quoting 140 Cong.

Rec H9245 (daily ed. Sept. 20, 1994) (statement of Rep. Harman)).

Ryan Roberts ([email protected]) served as the Editor-in-Chief of the Public Con tract Law Journal over the 2009-10 academic year. He expects to receive hisJ.D. degree from The George Washington University Law School in May 2010. Prior to attending law school, he graduated summa cum laudefrom the State University of New York at Albany in 2005.

He thanks his family for their love and support.

641



642 Public Contract Law Journal Vol. 39, No. 3 Spring 2010

ing efficiency within the government procurement system. In creating IDIQ contracts, Congress created an extremely efficient mechanism by which pro curement officials could quickly obtain the goods and services they need.

To supplement the inherent efficiency embodied by the IDIQ mechanism,

Congress took the additional step of barring bid protests of the award of task and delivery order contracts.4

Although the underlying goal of the government procurement system is to efficiently meet the specified needs of government agencies, a good pro curement system also must embody a number of key principles, including the three "pillars" of procurement: competition, integrity, and transparency.5

Thus, although the prohibition on protests of task and delivery orders was

intended to make IDIQs efficient, it also made it possible for Contracting Officers (COs) to abuse the IDIQ mechanism by avoiding the usual competi tion requirements.

Since FASA's enactment, a number of events have changed the nature of

government procurement. Most prominent among these were the terror ist attacks of September 11, 2001, and the subsequent military conflicts in

Afghanistan and Iraq.6 Government purchasing increased sixty-five percent between fiscal years 2003 and 2008, with total dollars spent rising from $326 billion to $537 billion.7 A substantial amount of this money, however, was lost to abuses within the procurement system or to fraud by contractors.8

The backdrop of war provided many examples of procurement misconduct,

including9 a senior Air Force official admitting that her personal employment interests influenced her decisions and recommendations in favor of Boeing in at least four procurements;10 a former Department of Defense (DoD) official

receiving a prison sentence in excess of eleven years for steering $18.1 million in government contracts for over $500,000 in kickbacks;11 and the investiga

4. Pub. L. No. 103-355, 108 Stat. at 3253. 5. Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law, 11 Pub.

Procurement L. Rev. 103,104 (2002). Other principles include efficiency, customer satisfaction, best value, wealth distribution, risk avoidance, and uniformity. Id. at 103.

6. Acquisition Advisory Panel, Report of the Acquisition Advisory Panel to the Office of Federal Procurement Policy and the United States Congress 2 (2007), available at http://www.acquisition.gov/comp/aap/24102_GSA.pdf [hereinafter AAP Report].

7. Federal Procurement Data System?Next Generation, Trending Analysis Report Since Fiscal Year 2003, http://www.fpdsng.com/downloads/top_requests/FPDSNG5Year1VlewOn Totals.xls (last visited Feb. 7, 2010).

8. See Dawn Kopecki, On the Hunt for Fraud, Bus. Wk. Online, Oct. 11, 2006, http:// www.businessweek.com/bwdaily/dnflash/content/oct2 006/db2 0061011 _1843 67 .htm/db2 006

1011_184367.htm (quoting Deputy Attorney General Paul McNulty's estimation that five per cent of federal spending in 2005 was lost to fraud).

9. AAP Report, supra note 6, at 141 (citing the specific examples that follow). 10. Abby Bowles, Ex-DOD Official Druyun Gets 9-Mo. Term, Admits Boeing Talks Affected Tanker

Deal, 82 Fed. Cont. Rep. (BNA) 335, 335 (Oct. 5, 2004). 11. Kimberly Palmer, Former Acquisition Official at Defense Agency Sentenced to 11 Years,

GovernmentExecutive.com, Apr. 7, 2006, http://www.govexec.corn/story_page.cfrnParticleid 33804&ref=rellink.



CICA Automatic Stay and Task/Delivery Order Bid Protests 643

tive activities of federal inspectors general during fiscal year 2005 resulting in more than 9,900 suspensions or debarments, more than double those of the

previous year.12 The widespread problems within the procurement system prompted a

congressional response. Part of the congressional solution was to lift the ban on bid protests of task and delivery orders. In doing so, however, Congress left many questions unanswered. Among the most important of these ques tions is whether the automatic stay provision available to parties at the Government Accountability Office (GAO) is applicable to this new category of bid protests.

The automatic stay, frequently utilized in traditional bid protests, should be applied to task and delivery order protests. By delaying performance until a

disappointed offeror's dispute is resolved, the automatic stay serves a valuable

purpose. Any minor delay it causes to the procurement process is a nominal

price to pay for the increased accountability it brings to the procurement sys tem. Furthermore, extending the automatic stay to task and delivery orders is not statutorily prohibited based on the Federal Acquisition Regulation's (FAR) definitions and the underlying goals of the procurement system.

Part II of this note will discuss the basics of IDIQ contracts, emphasizing their purpose in the procurement system. Part III will discuss how Congress enhanced this efficiency by prohibiting the protest of task and delivery orders, and how this prohibition undermined accountability within the IDIQ mecha nism. Part IV details how Congress attempted to bring accountability and

transparency to the IDIQ mechanism by, among other changes, lifting the task order protest bar and adding competition requirements for all task order contracts. Finally, Part V argues that the automatic stay should be applicable in the task and delivery order context.

II. IDIQ BASICS

Indefinite delivery contracts are characterized by the administrative ease

they offer the procurement officers. There are three types of indefinite de

livery contracts: definite quantity contracts, requirements contracts, and in

definite quantity contracts.13 These types of contracts lend the Government

great flexibility when it cannot accurately estimate the quantity or timing of

its needs in advance.14 A requirements contract facilitates efficiency in procurement by requiring

the contracting agency to fill its needs for specified goods or services based on the terms of the contract, during the contract period, exclusively from a

12. OMB Moving to Provide More Data on Contractor Suspensions, Debarments, 86 Fed. Cont.

Rep. (BNA) 249, 249 (Sept. 19, 2006). 13. FAR 16.501-2(a). 14. FAR 16.501-2(b)(2); Marko W. Kipa et al., Conquering Uncertainty in an Indefinite World: A

Survey of Disputes Arising Under IDIQ Contracts, 37 Pub. Cont. L.J. 415, 417 (2008).




single contract awardee.15 IDIQs, on the other hand, are usually, and prefer ably, awarded to multiple contractors all seeking to provide the same goods or services.16 After the CO evaluates the initial bids for the umbrella IDIQ contract, a determination is made as to the number of awardees who will be

granted the original contract, and will subsequently have the right to compete for individual task orders.17

When needs arise, the Government places task orders for services,18 or de

livery orders for supplies,19 within the scope of the original IDIQ contract. The awardees under the umbrella contract are notified of the need and can then

compete for each individual order.20 As time progresses and the Government's needs evolve, the additional round of competition at the task order level in

IDIQ contracting creates a new opportunity for the Government to achieve better value.

Created to provide an efficient purchasing mechanism, IDIQs impose requirements that provide some level of predictability. First and foremost, IDIQs must contain both a maximum total value for all orders and a mini

mum amount that all awardees are guaranteed.21 This minimum must be "more than a nominal quantity" for valid consideration to exist, and, there

fore, to create a mutually binding agreement.22 Once the Government has

purchased the minimum quantity stated in the contract, it has fulfilled its legal obligation, and it may purchase additional supplies or services from any other source it chooses, if a better value can be obtained.23

Due to their efficient framework, IDIQ contracts are popular among COs, as compared to full procurement processes. An agency with an IDIQ con tract in place can move quickly to purchase from one of the original awardees "without incurring search and evaluation costs, or negotiating costs and de

lays" associated with full procurement.24 Although the umbrella contract is

generally awarded through full and open competition, the individual orders

15. FAR 16.503(a). 16. FAR 16.504(c)(l)(i) (noting that "the contracting officer must, to the maximum extent

practicable, give preference to making multiple awards of indefinite-quantity contracts under a

single solicitation for the same or similar supplies or services to two or more sources"). 17. FAR 16.504(c)(l)(ii)(A) (explaining that "[t]he contracting officer must avoid situations in

which awardees specialize exclusively in one or a few areas within the statement of work, thus

creating the likelihood that orders in those areas will be awarded on a sole-source basis"). 18. FAR 2.101 ("'Task order' means an order for services placed against an established con

tract or with Government sources."). 19. FAR 2.101 ("'Delivery order' means an order for supplies placed against an established

contract or with Government sources."). 20. FAR 16.505(b)(l)(i) ("The contracting officer must provide each awardee a fair oppor

tunity to be considered for each order exceeding $3,000 issued under multiple delivery-order contracts or multiple task-order contracts ....").

21. FAR 16.504(a)(lH2). 22. FAR 16.504(a)(2). 23. Travel Centre v. Barram, 236 F.3d 1316, 1319 (Fed. Cir. 2001). 24. Christopher Yukins, Are IDIQs Inefficient? Sharing Lessons with European Framework

Contracting, 37 Pub. Cont. L.J. 545, 556 (2007).




are typically not subject to the normal competition or transparency require ments.25 Many COs favor IDIQs for this reason, as COs are permitted to evade the tightening requirements for competition, transparency, and ac

countability.26 Therefore IDIQs can be problematic for the same reason they are popular, as the "gain in administrative efficiency may come at the cost of a

deep loss in procurement value."27 Notification and competition for the individual orders are limited to the

IDIQ awardees; therefore, "potential competitors have no way to learn of, and thus to compete for, the hidden awards."28 Although this means COs are tasked with evaluating fewer bids, it restricts competition and diminishes overall value. Furthermore the mechanism inherently lacks transparency, as

only a small group of awardees becomes aware of task and delivery orders. This lack of transparency makes it difficult to ascertain whether the IDIQs

actually result in good value for the Government.29 Congress deemed this trade-off to be appropriate, concluding, as a matter of policy, that the need to streamline government procurement outweighed the need for transparency

within the IDIQ mechanism.

III. UNPROTESTABILITY OF IDIQ CONTRACTS

By creating the IDIQ framework in 1994 and prohibiting protests of in dividual task and delivery orders under umbrella contracts, Congress made a

concerted effort to make the government procurement system more efficient.

Specifically FASA attempted to reform federal procurement by "streamlin

ing and simplifying [the Federal Government's] buying practices."30 As part of this reform, Congress created a statutory framework that established that "when a procurement envisioned a multiple award IDIQ contract . . . the issuance of individual task orders to . . . contractors would not be subject to

protests."31 The statute states that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a

protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued."32

25. Id. at 546. 26. Id. 27. Id. at 547. 28. Christopher R. Yukins, The Gathering Winds of Reform?Congress Mandates Sweeping

Transparency for Federal Grants and Contracts, 48 Gov't Contractor 1 318, Sept. 20, 2006, at 1.

29. Id. ("[T] here is no practical way to track the tens of billions of dollars in task and delivery orders awarded under most standing indefinite-delivery, indefinite-quantity (IDIQ) contracts.

The shroud that surrounds contracting and grants hurts . . . accountability (no one knows, for

example, whether multiple-award IDIQ contracts are efficient or merely hide oligopolies)."). 30. A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 133 (2006) (quoting 140 Cong.

Rec H9240 (daily ed. Sept. 20, 1994) (statement of Rep. Conyers)). 31. Id. at 133 (citing Pub. L. No. 103-355, ? 1054, 108 Stat. 3243 (1994)). 32. 41 U.S.C. ? 253j(d) (2006). Review could be sought, however, with the agency ombuds

man. FAR 16.505(b)(6) ("The head of the agency shall designate a task-order and delivery-order




Several exceptions to the bar on protests of task and delivery order con

tracts were subsequently recognized, creating opportunities for contractors

to challenge the award of individual orders. In Labat Anderson Inc. v. United

States, the U.S. Court of Federal Claims (COFC) held that the bid protest ban did not apply to General Services Administration (GSA) Federal Supply Schedule (FSS) contracts.33 The COFC found that, because the protestor was

challenging an award under FAR Part 8 and not an award of a task order

under FAR Part 16, the FASA task order protest exemption did not apply.34

Although the COFC's reasoning was subsequently called into question,35 its

holding was never overturned, and protests of GSA FSS contracts persist.36 An exception also was recognized for bid protests of "downselections."

A downselection occurs when the contracting agency, during the task order phase of an IDIQ, repeatedly selects only one of the multiple awardees for continued per formance under the IDIQ contract.37 The GAO has asserted jurisdiction over these

claims because "FASA's legislative history shows that the multiple-award contract

ing provisions were intended to promote an ongoing competitive environment in

which each contractor was fairly considered for each order issued" and "[d]ownse lections are inconsistent with these ordering procedures."38

Contractors also have retained the ability to bring a protest that the award of a task order has violated the Contracts Dispute Act (CDA).39 These pro tests claim that an awardee has been denied a fair opportunity to compete for an individual task order,40 as originally mandated by FASA for all task and

delivery orders over $3,000.41 In Community Consulting International, the Armed Services Board of

Contract Appeals (ASBCA) first held that the Government's breach of a fair

opportunity to compete clause could be filed as a claim under the CDA.42 The ASBCA later expounded on this decision in L-3 Communications Corp., stat

ing that a breach of a fair opportunity to compete clause "may theoretically

ombudsman. The ombudsman must review complaints from contractors and ensure they are af forded a fair opportunity to be considered, consistent with the procedures in the contract. The ombudsman must be a senior agency official who is independent of the contracting officer and

may be the agency's competition advocate."). 33. 50 Fed. Cl. 99, 104(2001). 34. Id. 35. See Group Seven Assocs., LLC v. United States, 68 Fed. Cl. 28, 32 (2005) (stating that

the Labat-Anderson holding is "less than compelling" and jurisdiction over the Federal Supply Schedule (FSS) task orders is "doubtful" because "the statutory language

... does not suggest any

exceptions" for FSS contracts). 36. In Group Seven Associates, the U.S. Court of Federal Claims (COFC) dismissed the com

plaint on grounds unrelated to the jurisdictional question. Id. at 33. 37. Electro-Voice, Inc., Comp. Gen. B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD f 23,

at 2. 38. See Letter to the Honorable Charles E. Grassley, Comp. Gen. B-302499, Enclosure at 6

(C.G. July 21, 2004), available at http://pubklaw.com/rd/gao/2004/B-302499.pdf. 39. 41 U.S.C. ?? 601-613 (2006). 40. Ralph C. Nash Jr. & John Cibinic Jr., Task Order Contracts: The Breach of Loss of the Fair

Opportunity to Compete, 16 Nash & Cibinic Rep. | 49, Oct. 2002, at 154. 41. FAR 16.505(b)(l)(i). 42. ASBCANo. 53489, 02-2 B.C.A. (CCH) 1 31,940, at 157,787.




be grounds for both a protest' seeking to cancel or modify the award and a

'claim' for damages."43 The ASBCA reasoned that breach of the fair opportu

nity to compete clause, inherent to the umbrella contract, could properly be viewed as a CDA claim.44

The COFC, however, has explicitly rejected the ASBCA's rationale. In A & D Fire Protection, Inc., the COFC stated that it did not think this claim fell within its CDA jurisdiction, and would be reluctant to hear bid protests of task order awards that are "re-characterized as contract disputes in order to create jurisdiction."45 This language, although only dictum,46 indicated that the COFC would not entertain CDA claims based on a breach of the fair op

portunity to compete. Despite these jurisdictional exceptions, administrative ease, coupled with a

lack of oversight, contributed to the widespread use and abuse of IDIQ con

tracts. Data from the Federal Procurement Data System (FPDS) showed that

"agency expenditures through orders under [IDIQ] contracts [grew] signifi cantly, from approximately 14 percent of total dollars obligated in FY 1990 to about 52 percent of total dollars obligated in FY 2005."47 IDIQs became

particularly popular during the reconstruction efforts in Iraq48 and following domestic emergency situations, such as Hurricane Katrina in 2005.49 This

widespread use, in addition to the abuses discovered, brought IDIQ contracts

under heavy scrutiny from lawmakers.50

IV ENHANCED COMPETITION FOR IDIQ CONTRACTS

Increased spending under IDIQ contracts, and the corresponding increase

in fraud, forced Congress to take action. Initially Congress chartered a panel

43. ASBCANo. 54920, 06-2 B.C.A. (CCH) f 33,374, at 165,451. 44. Mat 165,451-52. 45. A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 135 (2006). 46. The contractor failed to submit a certified claim to the Contracting Officer, so the claim

was dismissed on procedural grounds rather than decided on the merits. Id. at 140.

47. See Memorandum from Paul A. Denett, Adm'r, Office of Mgmt. & Budget, to Chief

Acquisition Officers & Senior Procurement Executives 1 (May 31, 2007), available at http://

www.hhs.gov/oamp/policies/competitionmemo053107.pdf. This translates to an increase from

approximately $25 billion in FY 1994 to almost $200 billion in FY 2005. Id. Attachment 2.

48. See Maj. Kevin J. Wilkinson, More Effective Federal Procurement Response to Disasters:

Maximizing the Extraordinary Flexibilities of IDIQ Contracting, 59 A.F. L. Rev. 231, 256-57 (2007)

(discussing the use of IDIQ contracts in Iraq and the subsequent criticism). 49. Id. at 233 ("[T]he multiple-award IDIQ contract is the most valuable procurement tool

for disaster and crisis response operations by federal agencies and ... IDIQ contracts are ideally suited to meet the majority of contracting needs before, during, and after disasters or emer

gencies."); see also Federal Emergency Management Agency, How to Market to FEMA, http://

www.fema.gov/business/market.shtm (last visited Feb. 7, 2010) (advising contractors to "[g]o after GSA Schedule and Indefinite Delivery Indefinite Quantity (IDIQ) contracts. These are

popular contracting vehicles with government buyers because of little or no paperwork and fast

delivery. If a product or service is available through one of these vehicles?especially information

technology?the agency will go this route instead of issuing an RFP"). 50. The most contentious example was the LOGCAP III IDIQ contract, which was issued to

only one contractor, Halliburton subsidiary KBR, and drew fierce criticism for its substantial cost

of $17 billion in 2005 alone. See Wilkinson, supra note 48, at 256-57.




to investigate the abuse and to provide recommendations for dealing with it; based on the panel's recommendations a number of bills were introduced. The Panel's recommendations proposed specific enhanced competition re

quirements and provided for limited bid protests of task and delivery order contracts. To appreciate Congress's reasoning, it is important to trace the pro

gression of its decision, beginning with the congressionally mandated investi

gation into the widespread abuse of IDIQs.

A. Investigating the Problem

Congress first examined ways to enhance competition in IDIQ contracting through the congressionally chartered Acquisition Advisory Panel (AAP or

"Panel").51 With a view toward ensuring effective and appropriate use of com mercial practices and performance-based contracting, the AAP was directed to review the problem, recommend necessary changes to acquisition laws and

regulations, and identify ways to update government-wide acquisition poli cies.52 The Panel issued its recommendations in January 2007.53

In its report the AAP "identified 'serious concerns about the use of task

orderfs] to conduct major acquisitions of complex services' and that these orders 'should be subject to greater transparency and review.'"54 The AAP found that "the ordering process under task and delivery order contracts, in some instances, occur[red] without rigorous acquisition planning, adequate source selection, and meaningful competition."55 The Panel also found that task and delivery order contracts were being awarded on a best-value basis

without adequate guidance on how to actually award these orders.56 In order to improve "transparency and openness," the AAP recommended

that agencies adopt certain enhanced competition requirements, including post-award debriefings, for task orders over $5 million.57 Specifically, the Panel recommended that agencies "1) provide a clear statement of the re

quirements; 2) disclose the significant evaluation factors and subfactors and their relative importance; 3) provide a reasonable response time for proposal submissions, and; 4) document the selection decision to include the trade-off of price/cost to quality in best value awards."58

51. The Panel was authorized by the Services Acquisition Reform Act of 2003, Pub. L. No.

108-136, ? 1423,117 Stat. 1392, 1669, and Tide VIII of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, ? 843, 119 Stat. 3136, 3389, extended the deadline for the Panel's final report.

52. AAP Report, supra note 6, at ix. 53. See id. 54. Noah B. Bleicher et al., Accountability in Indefinite-Delivery/Indefinite-Quantity Contracting:

The Multifaceted Work of the U.S. Government Accountability Office, 37 Pub. Cont. L.J. 375, 399

(2008) (quoting AAP Report, supra note 6, at 108). 55. AAP Report, supra note 6, at 35 (Finding 6(c)(3)). 56. Id. (Finding 6(c)(5)). 57. Mat 10, 35. 58. Id. at 10.




More significantly, however, the AAP recommended that Congress lift the ban on bid protests for task and delivery orders above $5 million.59 The Panel noted that a large amount of money was being filtered through IDIQs, with FPDS data showing that nearly half of the agency dollars spent under

interagency contracts were expended on single transactions over $5 million.60

Furthermore, "[t]he Panel received evidence from witnesses and through re

ports by inspectors general and the GAO concerning improper use of task and delivery order contracts, multiple award IDIQ contracts, and other

government-wide contracts, including [FSS] contracts, including improper use of these vehicles by some assisting entities.,,61 Therefore the Panel rea soned that "these procurements are of sufficient significance that they should be subject to greater transparency and review."62 Given the Panel's findings, Congress was left with little choice but to take action.

B. Congressional Response In response to the AAP's recommendations, two "Accountability in

Government Contracting" bills, H.R. 1547 and S. 680, were introduced in the House and the Senate in the 110th Congress.63 In February 2007, Senator Susan M. Collins (R-Me.) introduced the Accountability in Government

Contracting Act of 2007.64 During her introductory remarks on the Senate

floor, Senator Collins directly addressed the abuse of IDIQ contracting in

Iraq and in the Government's response to Hurricane Katrina.65 The bill called for the publication of all task or delivery orders over $100,000 on the Government's "FedBizOpps" website, enhanced competition and debriefing requirements for orders over $5 million, and a prohibition on orders over

$100 million.66 The proposed changes were met by opposition from both industry trade

organizations and government officials.67 The Office of Federal Procurement

Policy (OFPP) argued that allowing bid protests would delay performance and

promote unnecessary litigation, and the additional reporting requirements

59. Id. at 108. 60. Id. at 9 (stating that $66.7 billion of the $142 billion obligated under interagency contracts

in FY 2004 was awarded in single transactions exceeding $5 million). 61. Id. at 35 (Finding 6(b)); see also Ralph C. Nash Jr. & John Cibinic Jr., Taming the Task

Order Contract: Congress Tries Again, 22 Nash & Cibinic Rep. f 31, May 2008, at 75 (stating that

improper use included "broad contract scopes, 10-year ordering periods, poorly defined task or

ders with long performance periods, options to extend task order performance for years on end, and open-ended hourly-rate-based pricing schemes that defy meaningful comparative evaluation

during source selection"). 62. AAP Report, supra note 6, at 108. 63. James J. McCullough et al., Acquisition Reform Revisited?Section 843 Protests Against Task

and Delivery Orders at GAO, 50 Gov't Contractor 1 75, Mar. 5, 2008, at 1.

64. S. 680,110th Cong. ? 203 (2007). 65. 153 Cong. Rec. S2205-06 (daily ed. Feb. 17, 2007) (statement of Sen. Collins). 66. Id. 67. McCullough et al., supra note 63, at 1.




were too costly and overly burdensome.68 Citing similar concerns, trade or

ganizations lobbied to maintain the status quo and only allow protests at the time of award of the initial umbrella contract.69 Ultimately Congress agreed

with the AAP's recommendations, and a number of the proposed changes were incorporated into the National Defense Authorization Act for Fiscal Year 2008 (NDAA).70

C. Congressional Solution

The final version of the 2008 NDAA was signed into law on January 28, 2008.71 Title VII of the NDAA was designated the "Acquisition Improvement and Accountability Act of 2008," and was heralded as "the most far-reaching acquisition reform measure approved by Congress in over a decade."72 Section 843 of the NDAA, titled "Enhanced Competition Requirements for Task and

Delivery Order Contracts," embraced three categorical changes for IDIQs recommended by the AAP Report.

First, Congress agreed that individual orders under IDIQs had become too

large, and decided to place a ceiling on their maximum value. Section 843(a)(1) states that "[n]o task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source."73 This cap was an attempt to curtail the use of long-term open-ended IDIQ contracts.74

68. See Office of Mgmt. & Budget, Executive Office of the President, Statement of Ad ministration Policy on S. 1547?National Defense Authorization Act for Fiscal Year 2008, at 5

(July 10, 2007), available at http://www.whitehouse.gov/omb/legislative/sap/110-l/sl547sap-s. pdf [hereinafter Administration Policy].

69. The six member Multi-Association Group asserted that "the appropriate time for chal

lenging the award of a contract is at the time of the award." SARA Panel Recommendations Stymie Procurement Reform Progress, Services Group Says, 49 Gov't Contractor f 122, Mar. 28, 2007, at 3.

70. McCullough et al., supra note 63, at 1. 71. National Defense Authorization Act (NDAA) for Fiscal Year 2008, Pub. L. No. 110-181,

122 Stat. 3. 72. FY 2008 Defense Authorization Act Includes Significant Acquisition Reforms, 49 Gov't

Contractor f 476, Dec. 19, 2007, at 7. 73. Pub. L. No. 110-181, ? 843(a)(1)(B), 122 Stat. at 236. The head of the contracting agency

may, however, circumvent this cap by determining in writing that

(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;

(ii) the contract provides only for firm, fixed price task orders or delivery orders for?

(I) products for which unit prices are established in the contract; or

(II) services for which prices are established in the contract for the specific tasks to be

performed;

(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or

(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.

Id. 74. See Nash & Cibinic, supra note 61, at 77 (stating that "[t]he main effect of the $100 million

threshold is likely to be fewer of the kinds of gigantic and troubling awards made in conjunction




Second, Congress implemented the enhanced competition requirements suggested by the AAP for task orders over $5 million. Section 843(a)(2), tided "Enhanced Competition for Orders in Excess of $5 [million]," inserts a new subsection (d) to 10 U.S.C. ? 2304c that states:

In the case of a task or delivery order in excess of $5,000,000, the requirement to

provide all contractors a fair opportunity to be considered under subsection (b) is not met unless all such contractors are provided, at a minimum?

(1) a notice of the task or delivery order that includes a clear statement of the

agency's requirements; (2) a reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the significant factors and subfactors, including cost or price,

that the agency expects to consider in evaluating such proposals, and their

relative importance; (4) in the case of an award that is to be made on a best value basis, a written

statement documenting the basis for the award and the relative importance of quality and price or cost factors; and

(5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.75

These requirements addressed the procurement process itself, forcing COs to divulge important information relating to award decisions both during and after contract award.

Third, Congress also accepted the AAP's recommendation that task and

delivery orders should be subject to bid protests. They did not embrace fully, however, the Panel's recommendations. The legislation reads:

(e) Protests.?(1) A protest is not authorized in connection with the issuance or

proposed issuance of a task or delivery order except for?

(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

(B) a protest of an order valued in excess of $10,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest autho rized under paragraph (1)(B).

(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.76

This language introduced three notable changes. First, it authorized bid pro tests for task and delivery orders above $10 million. This number is an ap

parent compromise between the $5 million threshold suggested in the AAP

Report and the higher thresholds recommended by industry and OFPP.77

with the war effort and of contracts like the one awarded by the Coast Guard for its Deepwater

program"). 75. Pub. L. No. 110-181, ? 843(a)(2)(B), 122 Stat. at 237. 76. Id. 11. McCullough et al., supra note 63, at 2; see also H.R. Rep. No. 110-477, at 956 (2007) (Conf.

Rep.) (stating that the final bill is the result of a compromise between the Senate version, which




Second, Congress gave the GAO exclusive jurisdiction to hear these claims,

although the COFC retained jurisdiction to hear claims brought by interested

parties alleging that orders increased the scope, period, or maximum value of

the contract.78 Third, the protest clause included a three-year sunset provi sion, a clause not included in the other additions.79

Although these changes were important steps in reforming IDIQ contract

ing, the legislation left many questions unanswered.

V. APPLICABILITY OF THE CICA AUTOMATIC STAY

One of the most compelling questions left unanswered by Congress is whether the CICA automatic stay, applicable to all other bid protests at the

GAO, is also applicable to bid protests of task and delivery orders. CICA established an automatic stay provision that, when a bid protest is filed at the

GAO, stays the procurement until the bid protest is resolved.80 Section 843, which granted the GAO exclusive jurisdiction to hear task and delivery order

protests, is silent as to whether the automatic stay provision is triggered by a

task or delivery order protest.81 The CICA automatic stay should apply to task and delivery order protests

because it enhances the underlying goal of efficiency without causing unnec

essary delay. Due to the quick turnaround time of protests at the GAO, the ef

ficiency of the IDIQ mechanism would not be substantially affected by adding this layer of accountability. Furthermore the textual argument that the stay is not applicable makes little sense when considering the practical and policy purposes of IDIQ contracts.

A. The Importance of the CICA Automatic Stay CICA calls for the automatic stay of a contract award and suspension of

performance of a newly awarded contract after the timely filing of a bid pro test at the GAO.82 Prior to the statutory creation of the automatic stay, the "GAO had little power to stop a contract award or suspend contract per formance while a protest was pending."83 Therefore, "[i]n enacting CICA,

allowed bid protests over $5 million, and the House version, which used the higher $10 million

threshold). 78. See Nash & Cibinic, supra note 61, at 83. 79. This seems to demonstrate legislative skepticism as to the benefit of task and delivery

order protests, and therefore the new jurisdiction will either be a short-lived anomaly or a test run for later permanent jurisdiction. The legislative history of the Act, however, indicates a de sire to keep protest jurisdiction beyond the sunset provision. See H.R. Rep. No. 110-477, at 956 (2007) (Conf. Rep.) (stating that "[t]he conferees expect that the sunset date will provide Congress with an opportunity to review the implementation of the provision and make any nec

essary adjustments"). 80. 31 U.S.C.? 3553(d)(3)(A) (2006). 81. See McCullough et al., supra note 63, at 3. 82. 31 U.S.C.?? 3551-3556. 83. Robert S. Metzger & Daniel L. Lyons, A Critical Reassessment of the GAO Bid-Protest

Mechanism, 2007 Wis. L. Rev. 1225, 1238 (citation omitted).




Congress attempted to provide effective review of bid challenges, and in the

process to encourage competition in contracting. "84

Upon CICA's passage, the automatic stay was heralded as "among the most significant provisions of this landmark piece of procurement legislation."85

Aggrieved contractors must file their protest within ten days of contract

award, or within five days of a requested and required debriefing.86 When the

contracting agency is notified of a protest, it may not authorize performance of the contract while the protest is pending.87 Furthermore, if performance has already begun, the CO "shall immediately direct the contractor to cease

performance under the contract."88 The automatic stay plays a critical role in bid protest adjudication by en

suring a high level of competition and accountability in contract awards. Even if a contract is awarded before the protest is filed, work will be suspended until the protest is resolved.89 Essentially, the automatic stay renders bid protests

meaningful. Without the stay, contracts would be awarded, and possibly even

completed, before the GAO could issue a decision on the merits of the case.90 A winning protestor would be deprived of any real opportunity to compete for the contract. Therefore, the automatic stay is very important to aggrieved contractors because it enables them to hold COs accountable for errors dur

ing the procurement process.91 The automatic stay would serve the same important purposes in the IDIQ

arena. Given the quick turnaround time for orders issued under IDIQ con

tracts, task and delivery order protests would be particularly futile without the automatic stay provision; the orders would undoubtedly be filled, or sub

stantially performed, by the time a decision on the merits is issued by the GAO. The automatic stay would redress deficiencies in the procurement pro cess by allowing aggrieved contractors the ability to win the contract after resolicitation.

B. The Added Accountability of the CICA Stay Outweighs Any Minor Delay The automatic stay should be applicable to task and delivery order pro

tests because the enhanced accountability the stay provides far outweighs any

84. Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 879 (3d Cir. 1986). 85. Mark A. Riordan, Federal Court Actions Challenging Agency Overrides of the CICA Stay, 23

Pub. Cont. L.J. 397, 397 (1994) (citation omitted). 86. 31 U.S.C.? 3553(d)(4). 87. Id. ? 3553(d)(3)(A)?. 88. M? 3553(d)(3)(A)(ii). 89. Jerome S. Gabigjr., Fighting over Government Contracts, Ala. Law., Jan. 2005, at 38, 40.

90. Ameron, Inc. v. U.S. Army Corps of Eng'rs, 787 F.2d 875, 878-79 (3d Cir. 1986) (stating that "CICA was enacted to remedy a major loophole in the long-standing GAO review procedure:

by the time the GAO reviewed most bid protests, the protests had become moot because either

the contract had been let or the contractor was engaged in performing under the contract. . . .

The result was that most procurements became faits accomplis before they could be reviewed."). 91. Id.




minor delay it may cause. One of the principal arguments against applying the automatic stay to IDIQ task and delivery order protests is that the automatic

stay will cause unnecessary delays and elongate the procurement process.92 Indeed streamlining the government procurement process was a driving force behind the creation of IDIQ contracts in the mid-1990s, as well as the initial

prohibition on bid protests of task and delivery orders.93 The time it takes to

place and fulfill a task or delivery order is a fraction of the time required to

perform a full procurement.94 Therefore, opponents argue that lengthening this process would undermine the primary purpose of IDIQ contracts. Good

government procurement policy, however, favors the application of the auto matic stay provision, despite the minor delay in the procurement process.

The main tenets of good government procurement, including account

ability and competition, should not be sacrificed for marginal increases in

efficiency. Although the underlying goal of government procurement is to meet the specified needs of government agencies, a good procurement system is defined by a number of key principles.95 Therefore, although meeting the

Government's needs efficiently is important, it is only one of the several prin ciples that define a good system.

Applying the automatic stay enhances several of the other main principles of a good procurement system. Staying the award of task and delivery or ders improves competition by allowing aggrieved parties to compete for the contract after resolicitation. Additionally, by holding COs accountable for

wrongful awards or defective processes, the stay bolsters the overall integrity of the procurement system. Therefore, given the overall benefit to be derived from the automatic stay, procurement policy should not favor a slight increase in administrative efficiency.

Additionally, due to the quick resolution of bid protests at the GAO, any disturbance to the procurement process would be minimal. The NDAA

granted the GAO exclusive jurisdiction to hear task and delivery order bid

protests.96 This exclusive grant of jurisdiction represents a calculated choice by Congress, providing some level of accountability for task and delivery orders while restricting their review to the most expeditious forum. By statute, the GAO is required to "issue a final decision concerning a protest within 100 days

92. Administration Policy, supra note 68, at 5. 93. "This legislation will simplify and streamline the Federal procurement process while im

proving its fairness, accountability, and integrity." 140 Cong. Rec H9240, 9244 (daily ed. Sept. 20, 1994) (statement of Rep. Maloney).

94. See Federal Acquisition Trends, Reforms and Challenges, Hearing Before the Subcomm. on Government Management, Information, and Technology of the H Comm. on Government Reform, 106th Cong. 6-7 (2000) (statement of Henry L. Hinton Jr., Assistant Comptroller Gen.), avail able at http://www.gao.gov/archive/2000/cg00007t.pdf (detailing the difference between an order off an FSS contract and a full and open procurement).

95. See generally Schooner, supra note 5. 96. Pub. L. No. 110-181, ? 843(a)(2)(B), 122 Stat. 3, 237 (2008).




after the date the protest is submitted to the Comptroller General.,,97 Although 100 days is the statutory deadline for the GAO to issue a decision, in reality, "[e]ven when supplemental protests are filed, [the] GAO generally decides them within the original 100 day period."98 Furthermore, a protest may be

expedited at a party's request or on the GAO's own initiative, and a decision would be issued within sixty-five days.99 Given the expeditious resolution of

protests at the GAO, especially when compared to COFC decisions,100 the automatic stay would result in only a minimal disturbance.

To further minimize the impact of the automatic stay on task and delivery orders, agencies should plan time into the acquisition process for potential bid protests. In full procurements agencies must anticipate and plan for bid

protests at the outset of the procurement process, and a failure to do so may

negatively impact their ability to obtain a stay override.101 This acquisition planning, pivotal to any successful procurement, would only have to be done for task and delivery orders over $10 million, as this is the minimum threshold for a bid protest. Therefore, basic acquisition planning, already required in full procurements, can reduce the negative impact that a protest of a task or

delivery order may cause.

The automatic stay override is another mechanism that minimizes the

negative impact of the automatic stay. CICA allows a contracting agency to

override the automatic stay in both pre- and post-award bid protests.102 The

contracting agency may override the stay for a pre-award protest upon a show

ing that there are "urgent and compelling circumstances which significantly affect interests of the United States [that] will not permit waiting for the deci sion of the Comptroller General."103 The post-award standard uses the same

language, but also allows the contracting agency to override the stay when

"performance of the contract is in the best interests of the United States."104

Initially agency "best interest" determinations were given great latitude by district courts;105 since the COFC has asserted jurisdiction over these claims,

97. 31 U.S.C. ? 3554(a) (2006); see also FAR 33.104(f) ("GAO issues its recommendation on

a protest within 100 days from the date of filing of the protest with the GAO ...."). 98. Maj. Kevin J. Wilkinson & Maj. Dennis C. Ehlers, Ensuring CICA Stay Overrides Are

Reasonable, Supportable, and Less Vulnerable to Attack: Practical Recommendations in Light of Recent

COFC Cases, 60 A.F. L. Rev. 91, 110 (2007). 99. 31 U.S.C. ? 3554(aX2); FAR 33.104(f); see also Wilkinson & Ehlers, supra note 98, at 110 n.99.

100. See Steven L. Schooner, The Future: Scrutinizing the Empirical Case for the Court of Federal

Claims, 71 Geo. Wash. L. Rev. 714, 756 & n.157 (2003) (noting the severe filing deadline discrep ancies between the GAO and the COFC, and stating that "[a]n unfortunate number of litigants find the COFC attractive simply because they failed to meet the less forgiving filing deadlines in

the administrative forum"). 101. Wilkinson & Ehlers, supra note 98, at 110-12.

102. 31 U.S.C. ? 3553(d)(3)(C). 103. Id. ? 3553(c)(2)(A). 104. Id. ? 3553(d)(3)(C). 105. See Topgallant Group, Inc. v. United States, 704 F. Supp. 265, 266 (D.D.C. 1998) (hold

ing that the agency's decision to override the stay "was based upon a discretionary determination

of the best interests of the United States, and as such, [was] not reviewable in this Court").




the court "has strongly suggested that the latitude previously afforded best interests decision is inappropriate."106 Even with this enhanced scrutiny, how

ever, only three "best interest" CICA stay overrides were overturned by the COFC in 2 006.107 Agencies thus still have great latitude to override the auto matic stay when necessary to prevent delay in the task or delivery order.

The counterargument here, however, is that the availability of the stay override greatly diminishes the value of the stay itself, such that applying it to the task and delivery order context will not enhance competition.108 Utilizing the stay override is not uncommon, with some arguing "that the exception is swallowing the rule."109 This argument has no special bearing in the IDIQ context, as it applies to all stay overrides by a contracting agency, and is even less compelling as applied to task and delivery order bid protests.

Generally a stay override requires the contracting agency to have some

justification for proceeding with the contract.110 Additionally utilizing this mechanism grants a task or delivery order protestor access to the COFC, a forum unavailable for the bid protest itself, to challenge the stated justifica tion for the stay.111 This threat of judicial review, in addition to the added

procedures and delay of the COFC, will deter agencies from utilizing the stay override in the IDIQ context.

The overall negative impact of the automatic stay on the procurement pro cess, especially in light of the quick turnaround time for GAO protests and the contracting agency's ability to override the automatic stay, is minimal.

Due to the added accountability it brings to task and delivery order bid pro tests, the CICA stay should be extended to task and delivery orders under

IDIQ contracts.

C. There Is No Statutory Bar to the Application of the Automatic

Stay to Task and Delivery Orders

In addition to the policy arguments against applying the CICA stay, some

argue that the automatic stay is statutorily inapplicable to task and delivery

106. Wilkinson & Ehlers, supra note 98, at 94; see also Advanced Sys. Dev., Inc. v. United

States, 72 Fed. Cl. 25, 31 (2006) (holding that the "best interests" justification provided by the

agency amounted to nothing more than a desire to complete the procurement in a more timely fashion, and allowing an override without substantial reasoning would undermine the purpose behind CICA and "permit the override exception to swallow the Congressionally mandated rule that stays be automatic").

107. See Wilkinson & Ehlers, supra note 98, at 94. 108. See id. at 93-94 (stating that "the stay may result in significant disruption and inconve

nience"). 109. See id. at 92. 110. Predictably, the contracting agency will cite the need to procure goods or services quickly,

hence the use of the IDIQ mechanism as the justification for overriding the stay. However, the COFC should be reluctant to embrace such an argument, and should additionally require, as the statute states, an "urgent and compelling" reason why the procurement could not endure the short delay. 31 U.S.C. ? 3553(c)(2)(A) (2006).

111. See Wilkinson & Ehlers, supra note 98, at 94 n.13 (stating that although no binding decision has been issued by the Federal Circuit on the matter, the COFC has cited RAMCOR




order protests based on a combined reading of CICA's text and the relevant FAR definitions.112

CICA states that "a contract may not be awarded in any procurement after the Federal agency has received notice of a protest with respect to such pro curement from the Comptroller General and while the protest is pending."113 CICA also states that a CO may not authorize performance of the contract to

begin if a protest is received within ten days after the date of contract award.11*

Unfortunately the statute fails to explicitly define what constitutes a "con tract" or "contract award" for purposes of the statute.

The FAR, however, does define all major terms included in its regulations.115 The FAR contains separate definitions for the terms "contract," "task order," and "delivery order." A "contract" is defined as "a mutually binding legal re

lationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them."116 The terms "task order" and

"delivery order," on the other hand, are defined as orders for products or ser vices "placed against an established contract or with Government sources."117 The argument follows that, because orders are issued off existing contracts, the orders themselves cannot be considered contracts under the definition

provided. Given that the stay only applies to contracts, it appears as though it would not apply to task or delivery orders pursuant to this distinction.118

The GAO has endorsed this distinction with respect to responsibility de terminations.119 In Advanced Technology Systems, the GAO cited the distinction between contracts and task/delivery orders in holding that a responsibility de termination is not required at the order level of an FSS contract.120 The GAO

Servs. v. United States, 185 F.3d 1286 (Fed. Cir. 1999), for the authority to review all CICA stay overrides).

112. McCullough et al., supra note 63, at 3. 113. 31 U.S.C. ? 3553(c)(1) (emphasis added). 114. Id.? 3553(d)(3), (4). 115. FAR 2.101 includes the definitions for all terms used in the subsequent regulations. 116. Id. The full FAR definition of "contract" states:

"Contract" means a mutually binding legal relationship obligating the seller to furnish the sup

plies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that,

except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts

include (but are not limited to) awards and notices of awards; job orders or task letters is sued under basic ordering agreements; letter contracts; orders, such as purchase orders, under

which the contract becomes effective by written acceptance or performance; and bilateral con tract modifications. Contracts do not include grants and cooperative agreements covered by 31

U.S.C. 6301, etseq. For discussion of various types of contracts, see Part 16.

Id. 117. Id. 118. McCullough et al., supra note 63, at 3. 119. "Responsibility is a contract formation term that refers to the ability of a prospective con

tractor to perform the contract for which it has submitted an offer; by law, a contracting officer must determine that an offeror is responsible before awarding it a contract." Advanced Tech. Sys., Comp. Gen. B-296493.6, Oct. 6, 2006, 2006 CPD \ 151, at 5.

120. Id. at 1, 5.




held that, because the CO made a responsibility determination at the time

of contract award, the agency was not required to perform an additional re

sponsibility determination when placing a task order.121 The decision seemed

to imply that, because task orders were placed during the performance of

the original contract, "there [was] no requirement that an agency make ad

ditional responsibility determinations during the course of performance."122 The statutory language argument follows that, since the GAO has endorsed

this distinction as related to responsibility determinations, it also should apply in other contexts.

The aforementioned arguments, founded upon a cursory reading of the

FAR definitions, are not persuasive. Both practical and policy analyses suggest that this distinction should not be applicable to the automatic stay. Simply

put, application of the automatic stay to task and delivery orders is not barred

by statute. In fact, a closer reading of the FAR definitions reveals that task

and delivery orders may be considered contracts, which would render them

subject to CICA and its automatic stay provisions. A reading of the entire FAR definition of "contract" undermines the tex

tual distinction between contracts and orders under IDIQs because task and

delivery orders still fall under the overarching definition of a "contract." Task

and delivery orders, although defined as occurring under an original contract, are also "mutually binding legal relationship [s] obligating the seller to furnish

the supplies or services . . . and the buyer to pay for them."123 The fact that

this agreement comes pursuant to a preexisting binding agreement does not

preclude the second-level order from being a contract itself.

Additionally the open-ended FAR 2.101 definition of a contract specifically includes "job orders or task letters issued under basic ordering agreements" and "orders, such as purchase orders."124 This express, explanatory guidance

makes clear that task and delivery orders do fall under the umbrella definition

of a contract.

Furthermore, despite endorsing the distinction for responsibility determi

nations, the GAO also has supported the opposing view that an order placed under an IDIQ is itself a contract. In Valenzuela Engineering, the contractor

protested the failure by the Air Force and the Army Corps of Engineers to

apply certain small business set-aside rules to task orders under an IDIQ.125 There the GAO found that task and delivery orders under IDIQs are "con tracts" implementing the acquisition.126 The GAO sustained the contractor's

121. Id. 122. Id. at 5 (citing E. Huttenbauer & Son, Inc., B-258018.3, Mar. 20,1995, 95-1 CPD f 148,

at 2). 123. FAR 2.101 (definition of "contract"). 124. FAR 2.101 states that the list provided is not exclusive, and therefore other agreements

not listed may fit the definition of a "contract." 125. Letters to the Air Force and Army Concerning Valenzuela Eng'g, Inc., Comp. Gen.

B-277979, Jan. 26, 1998, 98-1 CPD f 51, at 1. 126. Id. at 1-2.




protest, holding that the Government failed to apply the small business set aside rules to the individual orders under the IDIQ.127 This decision indicated, at least for limited purposes, that orders under IDIQs can be considered con tracts. The GAO glossed over this point in the decision, however, merely including it in a footnote despite its importance.128

The footnote has subsequendy been cited as having precedential value, once again in the context of small business set-asides. In Delex Systems, the GAO held that the set-aside provisions of FAR 19.502-2(b) apply to competi tions for task and delivery orders issued under multiple-award contracts.129 In arriving at this conclusion, the GAO held that task and delivery orders

placed under an IDIQ contract are "acquisitions," and are therefore subject to the "Rule of Two" intended to enhance small business awards.130 Citing to Valenzuela, the decision noted that the GAO had "previously concluded that a delivery order placed under an ID/IQ contract is, itself, a 'contract,' at least for some purposes."131 This affirms the proposition that, depending on

the circumstances, the GAO will classify orders under IDIQs as stand-alone contracts.

After the GAO's Delex decision, the question changed; now, one must ask if the automatic stay is more similar to a responsibility determination or a small business set-aside. An analysis of the pertinent practical and policy consid erations demonstrates that the automatic stay is more akin to small business set-asides.

In practice, responsibility determinations serve a much different purpose from staying bid protests. Although responsibility determinations are valu able and necessary at the outset of a contract award to determine if the con tractor has the capability to fulfill the contract, they become redundant and

unnecessary at the second level of an IDIQ contract, i.e., the task or delivery order phase. Furthermore the GAO has stated that the "concept of responsi

bility expressly applies to 'prospective contractors'?not 'current' or 'existing' contractors."132 Therefore performing an additional responsibility determina tion is unnecessary in light of the practical value and the pertinent statutory

language. Unlike responsibility determinations, however, applying the small business

set-aside rule to both levels of award serves a valuable purpose. As the GAO

noted in the Delex Systems protest, "[competitions for task and delivery orders are the stage when holders of multiple-award ID/IQ contracts offer prices

127. Id. at 1. 128. See id. at 2 n.l. 129. Delex Sys., Inc., Comp. Gen. B-400403, Oct. 8, 2008, 2008 CPD % 181, at 8.

130. Id. The Rule of Two "requires agencies to set aside for small businesses any acquisition

exceeding $100,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns." Id. at 5.

131. Id. at 8 (citing FAR 2.101; Letters to the Air Force and Army Concerning Valenzuela

Eng'g, Inc., Comp. Gen. B-277979, Jan. 26, 1998, 98-1 CPD 1 51). 132. Advanced Tech. Sys., Comp. Gen. B-296493.6, Oct. 6, 2006, 2006 CPD f 151, at 5.




and solutions to meet specific agency needs," which is "therefore the most

meaningful stage for a Rule of Two analysis."133 The GAO explicitly recog nizes that, if not applied at the second level of competition, the small business

preferences become useless because contracts will not be actually awarded. In theory, the small businesses would get to compete due to their status as an

IDIQ awardee, but in practice they would be unlikely to receive an award.

Similarly the order phase of an IDIQ contract is the most meaningful stage for the applicability of the automatic stay. While applying the stay at the award of the IDIQ is useful to ensure that deserving contractors can com

pete for the subsequent orders, the critical aspect is actually getting the order. This cannot be said for responsibility determinations, which provide the bulk of their value at the initial stage, the award of the umbrella IDIQ contract. Because the second level is more meaningful to the stay analysis, the stay is similar to small business set-asides, and should be applicable to orders issued under an IDIQ.

An analysis of the policies behind each mechanism endorses the same re sult. Accountability, the driving force behind responsibility determinations, is not enhanced by performing a second evaluation at the order level. Only the threshold determination is necessary to ensure that the selected contractor is

responsible, and the additional layer of review is unlikely to provide additional information. Enhancing competition, an important purpose of both the small business preferences and the multiple award IDIQ mechanism, is promoted by extending the automatic stay to the order level. Without applying the small business preferences to the second stage of award for a task/delivery order, the Government cannot ensure that small business contractors are getting a fair opportunity to compete. Similarly, without the automatic stay of a task or

delivery order pursuant to a bid protest, the Government cannot ensure that each contractor gets a fair opportunity to compete. As such, it is apparent that both practical and policy analyses demonstrate that IDIQ orders should be considered contracts and the automatic stay should be applicable for protests of their award.

VI. CONCLUSION

Congress significantly improved accountability and competition in IDIQ contracts by lifting the ban on bid protests in the 2008 NDAA. Applying the automatic stay to these protests would further enhance these procurement pillars without sacrificing much of the efficiency the IDIQ mechanism was created to provide. Given the minimal negative impact the automatic stay would have on the procurement process, as well as the lack of any statutory barriers to its application, the stay should be utilized by the GAO when a bid

protest is filed relating to a task or delivery order contract.

133. Delex Sys., 2008 CPD 1 181, at 8.



DOES AUTOMATIC MEAN AUTOMATIC? THE APPLICABILITY OF THE CICA AUTOMATIC STAY TO TASK AND DELIVERY...

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