Multiple protests arguing that a task order request for proposals sought services beyond the scope of the underlying multiple-award IDIQ contracts are sustained, where the protesters could not have reasonably anticipated that the agency would seek to procure air tanker flight services for extended, guaranteed periods at specific locations when the IDIQ contracts are limited to air tanker flight services on an as-needed, on-call basis.
Multiple protesters challenged the terms of a Department of the Interior task order request for proposals for single engine air tanker (SEAT) flight services to support the Bureau of Land Management’s wildfire suppression operations in the continental United States. The protesters assert that the services sought for extended, guaranteed periods of performance are beyond the scope of the protesters’ IDIQ contracts.
Specifically, the protesters argued that the way in which flight services will be provided pursuant to the TORP is materially different than how services are provided under the on-call contract. In addition, the protesters cited decades of prior practice and the relevant procurement history as evidence that exclusive-use SEAT flight services and on-call SEAT flight services warrant separate procurements. According to the protesters, because they could not have anticipated that their on-call contracts would be the vehicle used to procure SEAT flight services for extended, guaranteed periods of time, the TORP reflected an out-of-scope modification of their contracts.
In response, the agency maintained that the SEAT flight services sought under the TORP were encompassed by the protesters’ on-call IDIQ contracts. Further, the agency argued the protesters could not demonstrate prejudice because they would not be precluded from competing for the task orders.
GAO agreed with the protesters, finding that SEAT flight services for guaranteed periods of at least 75 days at predetermined locations are beyond the scope of the protesters’ on-call contracts. Although both the IDIQ contracts and the TORP at issue involve the acquisition of SEAT flight services to assist BLM in the suppression of wildland fires, GAO found the obligations of the contractors under the on-call contract, as compared to what is contemplated by the TORP, are materially different. GAO found that the TORP essentially sought to convert the on-call contracts into exclusive-use procurement vehicles, regardless of the agency’s contentions otherwise.
Specifically, the on-call orders provide for SEAT flight services for emergencies or surge requirements, with services sought when needed, on a daily basis, for ostensibly shorter periods of time, with the aircraft transitioning from and mobilizing to various locations throughout the wildfire season, depending on the emergent wildfire conditions. In contrast, the exclusive-use TORP contemplated that aircraft would be prepositioned at one location by a predetermined date for an extensive period of 75 days or more, reserved exclusively for BLM use during the full performance period.
GAO also found that the IDIQ contracts made no reference whatsoever to any long-term, guaranteed performance period for SEAT flight services, and that the agency would administer the services sought in the TORP differently than it did the services currently ordered under the IDIQs. Further, GAO found that the agency’s own historical procurement record demonstrates that DOI understood the character of these SEAT flight services to be distinct and sought them using separate procurements. Given the history of the procurements and the contracts as written, GAO concluded the services sought by the TORP exceeded the scope of the underlying IDIQs and sustained the protests.
GAO also concluded the protesters would be prejudiced under the TORP, because they would be constrained by the aircraft, pricing, and overall proposal strategy utilized for the on-call contract, which they developed for use based on their expectations for the on-call contracts. GAO noted that the on-call contract advantaged lower-priced contractors, while a previous exclusive-use procurement placed less emphasis on price. Further, the protesters simultaneously competed for the existing IDIQ and previous exclusive-use contract, which played a significant role in how they structured their pricing proposals. According to the protesters, had they known that the on-call contract would encompass exclusive-use SEAT flight services, they would have structured their proposals differently and altered their pricing accordingly.
The protesters are represented by John R. Prairie, Gary S. Ward, and Sarah B. Hansen, Wiley Rein LLP, for Western Pilot Service; Katherine S. Nucci, Scott F. Lane, and Jayna M. Rust, Thompson Coburn LLP, for Aerial Timber Applicators, Inc.; Frank S. Murray, David T. Ralston, Jr., Micah T. Zomer, and Krista A. Nunez, Foley & Lardner LLP, for Evergreen Flying Services, Inc.; and Gary J. Campbell and Kelley P. Doran, Womble Bond Dickinson LLP, and Jessica Rothenberg, Pepper Hamilton LLP, for G.B. Aerial Applications, Inc.
The government is represented by Amy M. Siadak, Department of the Interior. GAO attorneys Noah B. Bleicher and Peter H. Tran participated in the preparation of the decision.
GAO-Western-Pilot-Service