At the Hearing of the Senate Armed Services Committee on April 19, 2007, on the management of The Department of Defense`s costs under the Civilian Logistics Augmentation Program (“LOGCAP”) contract in Iraq, Senator Carl Levin (D-MI) asked why the military had waited five years to distribute the contract among several contractors, allowing competition for individual task assignments. The Army`s assistant secretary for procurement, technology and logistics replied, “I don`t have a good answer for you.” The provisions of § 843 ensure that there is competition in future contracts of this type in the award of contracts and supply contracts without compelling reasons. For us, however, the open question arises as to whether multi-assignment task order (“MATOC”) contracts are legally permitted under the Federal Procurement Regulations for the acquisition of construction services. A protest raising this issue has been filed by our law firm and is pending in the U.S. Federal Claims Court. Recently, a protest was filed in the U.S. Federal Claims Court by our company on behalf of a small contractor who challenged a claim issued by the Fort Worth District of the U.S. Army Corps of Engineers. The request, No. W9126G-07-R-0123, is one of four similar calls for the construction of military projects. The U.S.
military is one of the entities that makes the most use of MATOC treaties. This is because MATOC contracts reduce administrative costs, which means that more money is available for the use of the construction contracts themselves. Unfortunately, those who are not selected for a MATOC contract will not always be able to jump immediately on the horse that threw them away. Because MATOC contracts are awarded over such a long period of time, the chances are slim. This can be a problem for small businesses as there is a lot of investment and patience to get a MATOC contract. Expect to spend a few months going through the process with no guarantees in mind. The strength of the MATOC contract lies in its versatility. As long as the contractor is proven, reliable and efficient, MATOCs reduce a lot of effort and bureaucracy.
If a contractor has received a MATOC award, new work only takes a few weeks and not months to get started. The exclusive jurisdiction granted to the GAO means that the Federal Court of Claims (SWC) will not rule on these protests. Under the current protest regime, the GAO and the CFC have the right to hear protests, and we would have preferred this dual jurisdiction to continue protests against the work order. One of the advantages of the current system for contractors is that if they are not satisfied with the outcome of a GAO protest, they can get a de novo review of the same protest at the CFC. Under Section 843, this second chance is not available for protests against work or supply orders. This has a serious impact on entrepreneurs, as only a small fraction of the protests heard by the GAO are maintained. In recent years, the U.S. Army Corps of Engineers has tried to apply “innovative” contract methods, but has often limited the number of contractors who have had the opportunity to carry out large construction projects. One of the justifications for these “innovative” methods was that there was a reduction in . To justify his protest, Weeks claimed that SAD`s proposed amendment to the idiq/MATOC negotiated supply was against the law and lacked a rational basis. Weeks relied on 10 U.S.
C. Section 2304(a) and Federal Acquisition Regulation (“FAR”) ¶ 6.401(a), which require an agency to use sealed bidding processes if (1) time permits, (2) award is solely based on price, (3) no discussion is required, and (4) the Agency reasonably expects to receive more than one bid. Weeks claimed that each of these four conditions for SAD`s dredging contracts was met and that there was no legal basis for the use of negotiated procedures. The Corps of Engineers, on the other hand, argued that the procurement of the IDIQ proposed by SAD was legal, that the Agency had a wide margin of appreciation in choosing an appropriate procurement method, and that SAD`s reasoning for the change was appropriate in the current circumstances. The court disagreed and ruled that an organization`s discretion “does not authorize an organization to use a method of procurement that violates applicable law.” The court ruled that SAD had not reported significant changes in its procurement environment that would justify a change in IDIQ`s procurement. The takeover plan confirmed that SAD had “excelled in delivering the program” over the past two years and that “the court sees no reason or development for a deviation from the sealed bidding process. Without providing analysis of applicable laws and regulations, and without giving any reasons or significant developments, the court ruled that SAD would violate 10 U.S.C§ 2304(a), FAR¶ 6.401(a), FAR¶ 14.103-1(a) and FAR¶36.103(a) by using IDIQ task order contract methods. “Essentially, a MATOC is a framework agreement used to accelerate future work orders. A new contract has not yet been developed for individual tasks, but the MATOC is a broader global agreement that defines what the employment relationship will look like and eliminates the need to negotiate such things in each individual contract, saving time and allowing for much flatter and more efficient management. In asserting the need to move from sealed bids to negotiations, the Corps contradicted its own position by stating that its approach to sealed bids had “excelled in delivering the program” over the past two years. As a result, the court concluded that “the Agency has not provided any evidence that the current system fails or needs to be revised.
In fact, the court would find it difficult to identify contracts that are more suitable for sealed tenders than for dredging. If it is not suitable for dredging, it is difficult to imagine when sealed offers should be used. (emphasis added). By: Michael H. Payne The recent increase in the use of indefinite delivery/amount (“IDIQ”) contracts for construction has become even more evident when looking at the “Planned Acquisition Strategy for Fiscal 2011” released by the Jacksonville District of the Corps of Engineers. A review of the list shows that most of the construction . Michael H. Payne is Chair of the firm`s Federal Practice Group and, along with other experienced members of the group, frequently advises contractors on federal contracting matters.
He is also the managing director of FedCon Consulting, a parallel company of the company that involves former contract agents, technical and procurement staff, as well as lawyers to help federal contractors prepare proposals. .