Task Order Disputes In FSS Contracts

government contracts

Who Resolves Disputes Over A Task Order Issued Pursuant To GSA Schedules

A recent decision from the Board of Contract Appeals highlights the conflict for contractors of who has jurisdiction to determine disputes over a task order issued under a GSA Schedule contract.

Consultis of San Antonio, Inc. v. Department of Veterans Affairs

The VA issued a task order to Consultis under its Federal Supply Schedule (FSS) contract to perform information technology services. A Consultis employee raised concerns about the wage rates being paid to contractor personnel. After being referred to the Department of Labor (DOL) regarding the applicability of the Service Contract Labor Standards, DOL determined the regulations applied to the FSS contract but the wage rates determinations did not because they were not included in the contract. Upon request by the contractor, both the GSA and the VA contracting officers refused to add the appropriate wage determinations for the place of performance to the FSS contract or the task order. However, the VA contracting officer later issued a unilateral modification incorporating wage rates into the task order which resulted in increased costs to Consultis. When the VA refused a request for additional funds under the task order to account for the contractor’s increased costs and then issued a final decision denying the payment request, Consultis appealed.

In determining whether it had jurisdiction, the Board of Contract Appeals discussed the issue of which contracting officer decides a task order dispute under an FSS contract. It articulated that pursuant to Federal Acquisition Regulation 8.406-6, disputes related to the terms and conditions of a GSA Schedule contract should be decided by a Schedule contracting officer; whereas, disputes pertaining to the performance of task orders should be handled by the ordering activity’s contracting officer. In Consultis, the Board held that the dispute in the case related to an interpretation of the contract and not to performance of the task order. As such, no final determination had been issued by the contracting officer which would give rise to a live claim for appeal to the Board under the Contract Disputes Act since a final determination should have come from the Schedule contracting officer not the task order contracting officer.

Conclusion

Consultis reminds contractors to carefully consider the nature of the dispute when dealing with task or delivery orders issued under an FSS contract. If the dispute turns on an interpretation of contract terms and conditions, the appropriate adjudicator is the Schedule contracting officer. If it turns on performance, the ordering agency’s contracting officer should address and determine the claim. As Consultis demonstrates, presentation of a claim to the wrong decision maker may bar an appeal of an unfavorable decision.

Kristi Morgan AronicaKristi Morgan Aronica, Government Contracts Attorney
kristi@weitzmorgan.com
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