Type: Law Bulletins
Date: 10/07/2011

GAO Protest Jurisdiction - Ending Or Expanding?

In Technatomy, a disappointed bidder challenged the Defense Information Systems Agency (“DISA”) award of a task order under an Indefinite Delivery Indefinite Quantity (“IDIQ”) contract on the ground that DISA unreasonably evaluated vendors technical and cost quotations. DISA moved to dismiss the protest citing lack of jurisdiction. In Re Technatomy, B-405130, June 14, 2011.

Specifically, DISA charged that the GAO’s jurisdiction to hear task order protests in excess of $10 million had expired on May 27, 2011, as provided in the sunset provision of 41 U.S.C. Section 253j(e, recently recodified at 41 U.S.C. Section 4106(f).

The GAO denied DISA’s motion and rejected the government’s argument. The GAO explained that its jurisdiction to hear bid protests was derived from the Competition in Contracting Act (“CICA”), passed in 1984. The GAO’s had authority to review protests of awards and did not distinguish between contract awards and task or delivery order awards.

In 1994, Congress, through the Federal Acquisition Streamlining Act (“FASA”), sought to limit the GAO’s jurisdiction over protests of task or delivery order awards to only those which increased the scope, period, or maximum value of the contract under which the order was issued.

In 2008, Congress amended FASA by expanding the GAO’s original FASA jurisdiction to include protests of task or delivery orders in excess of $10 million. The 2008 amendment also contained a sunset provision stating that “This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.” That date was May 27, 2011. Undoubtedly, DISA understood the sunset provision to end the GAO’s jurisdiction to hear protests of task orders.

The GAO, clearly surprising the government, ruled that it had jurisdiction because it was effectively returning to a pre-FASA world. GAO ruled that the 2008 sunset provision did not eliminate the GAO’s jurisdiction to hear task or delivery order protests but, instead, eliminated all of the FASA restrictions on the GAO’s jurisdiction to hear them. In short, the GAO took the position that the sunset provision ended all of Congress’ limitations and “reverted to the jurisdiction we had [over protests of task or delivery orders] under CICA, prior to its amendment by FASA.”

As far as the GAO is concerned, it now has no limitations on its authority to hear protests challenging the award of any delivery or task order, for any dollar amount.

What does this mean for the federal contractor? In a world with smaller federal budgets, a shrinking federal procurement work force and more agency needs being bundled together (in IDIQ type contracts), all of which results in fewer contract awards, contractors now have a greater opportunity to challenge agency handling of task or delivery order awards than they previously had.

The GAO has opened the door for protests previously prohibited; gone are the limitations that the task or delivery order must have expanded the scope, period or value of the contract or been over $10 million. And, government agencies who thought they no longer had to worry about protest delays when it came to task or delivery order awards must rethink that proposition entirely.

It remains to be seen what Congress will do but, until then, the GAO will maintain it current staff to handle protests of any award — contract, task order or delivery order.

This article was originally published on Law360, July 6, 2011

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