On November 1, 2018, the Department of Defense, General Services Administration, and the National Aeronautics and Space Administration published a proposed rule that requires a federal agency to use a standard notice to inform contractors about the agency's task-order and delivery-order ombudsman.
Specifically, the proposed rule amends FAR 16.506 to require agencies to insert a newly created FAR clause under FAR 52.216 in solicitations and contracts that contemplate multiple award indefinite-delivery, indefinite-quantity (IDIQ) contracts. The new FAR clause, in turn, identifies the name, address, phone number and e-mail address for the agency ombudsman or provides a link where the information can be found. The clause also encourages contractors to address complaints with the contracting officer before contacting the ombudsman and warns that consulting with an ombudsman will not alter or postpone protest deadlines.
A contractor new to federal government contracting may be asking who or what a task-order and delivery-order ombudsman is. The rules for IDIQ’s under FAR 16.505 require federal agencies to designate a task-order and delivery-order ombudsman who must “review complaints from contractors and ensure that they are afforded a fair opportunity to be considered, consistent with the procedures in the contract.”
So understanding clearly who the ombudsman is and how to contact him or her is important, particularly since the rules limit protests of IDIQ task and delivery orders. FAR 16.505 sets forth only two circumstances in which protests of orders under delivery-order contracts or task-order contracts are permitted:
(1) If the protest is on the grounds that the order increases the scope, period, or maximum value of the underlying contract; or
(2) If the value of the order exceeds a minimum threshold – namely, $25 million for contracts with NASA, DoD and the Coast Guard, and $10 million for contracts with all other agencies.
What’s more, protests permitted under the second circumstance – i.e. that are permitted because the task order exceeds minimum threshold values – can only be filed with GAO. Agency level protests and protests filed with the Court of Federal Claims are, therefore, precluded.
Consequently, in instances in which protests are not permitted, the only avenue that may be open to a contractor that has a complaint about a task or delivery order is review by the agency task-order and delivery-order ombudsman.