Fog of war no reason to skirt contracting rules, GAO says

Despite pressing circumstances, federal contracting rules still apply, according to the Government Accountability Office's latest bid protest decision.

On March 15, GAO announced that it had sustained DynCorp International’s bid protest of Army task orders for mentoring and training at the Afghan Ministry of the Interior and the Afghan National Police as well as maintaining the facility for its police development program.

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The Army issued the task order solicitations under multiple-award indefinite-delivery/indefinite-quantity (IDIQ) contracts. However, DynCorp argued, and GAO agreed, the orders were outside of the scope of the IDIQ contract’s counter-narcoterrorism-related work.

“We recognize the Army’s position that it needs to swiftly award a contract for these services,” said Ralph White, GAO’s acting managing associate general counsel for procurement law. However the existing IDIQ contracts were limited to providing counter-narcoterrorism support services worldwide.

Alan Chvotkin, executive vice president and counsel for the Professional Services Council, said GAO’s decision tells agencies they must adhere to the rules of contracting over their desire for expediency.

“The decision is a clear statement from GAO that, notwithstanding important national and international priorities, the contracting rules still matter,” Chvotkin said.

The decision also tells agencies to make sure they honor the scope of the contract, he said.

In discussions with the Army, GAO was not persuaded by the Army’s argument that the contracts told companies the work would include a “full spectrum of support” and “support for training, operations, and logistics for military and civilian missions.” As a result, those statements make the task orders fall in the contracts’ scope.

GAO instead said an agency cannot extract isolated “catch all” words and phrases from a contract, or stretch the flexibility of a contract, to justify an order that would reasonably have been beyond a contract's limits, Lynn Gibson, acting general counsel at GAO, wrote in the decision.

The Army’s contracting officer also argued that the services sought in the task orders are in the scope of the counter-narcoterrorism contracts because the insurgency in Afghanistan is funded, at least in part, by money from drug trafficking, Gibson wrote.

The contracting officer said a nexus exists between the counter-insurgency work and counter-narcoterrorism. In essence, in Afghanistan the insurgency is funded by drug trafficking and any organization or ministry conducting counter-insurgency operations there is involved in countering illegal drug trafficking, according to GAO's decision.

GAO disagreed with the nexus theory.

“In our view, the underlying multiple award contracts did not contemplate providing the services requested by these task order solicitations, as these services are significantly broader than the counter-narcoterrorism efforts anticipated by the underlying contracts,” White said in a statement.

GAO recommended that the Army cancel the task orders and either conduct a full-and-open competition, or prepare the appropriate justification for the orders.