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Technical Direction Letters Can Constitute Protestable Out-of Scope Modifications

Competition is a foundational pillar of the Federal government’s procurement system. Having contractors compete to fulfill the government’s requirements enables agencies — and by extension the taxpayer — to receive better prices for goods and services. Agencies, however, do not always adhere to the rules promoting competition. And given the complexity of federal procurement, agencies can adopt opaque practices that intentionally or inadvertently hinder effective competition. In this alert, we discuss one such practice: the issuance of out-of-scope Technical Direction Letters. The Technical Direction Letter (TDL) A TDL (also sometimes called “Technical Instructions”) provides agency guidance to a contractor after award about a task in a contract’s performance work statement. For example, a TDL can specify an exact time or place for the contractor to perform a task or identify the sequence of tasking. While a TDL provides further detail to the contractor for performing a task, it cannot conflict with the terms of the contract or task order under which it was issued. TDLs are generally considered to be a tool of contract administration. As such, TDLs are not posted publicly but are typically transmitted from the agency through the contracting officer to the contractor. Generally, only the contracting parties know of the TDL. Given the non-public nature of TDLs, third parties in most instances do not receive notice of agency direction to a contractor. The non-public aspect of TDLs may be why there are hardly any bid protest decisions discussing them from the U.S. Court of Federal Claims or the Government Accountability Office (GAO).

Co-Authors: Robert Nichols, Andy Liu, Jason C. Lynch, Andrew Victor, Rebekah Woods.

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