In June I wrote about GAO’s conclusion that its protest jurisdiction over agency task and delivery order procurements will not only continue after the May 27, 2011 sunset date, but will expand. At that time, I noted that, to the extent the Court of Federal Claims agreed with GAO’s interpretation of the 41 U.S.C. § 4106(f)(3) (formerly codified at 41 U.S.C § 253j(e)) sunset clause, the Court’s existing jurisdiction over bid protests under the Tucker Act would not prevent it from hearing protests of civilian agency task and delivery order procurements. Three months have passed, and legislation to extend the GAO’s protest jurisdiction over these procurements remains stalled in Congress, but the Court of Federal Claims has spoken and has agreed that the sunset provision means that it is free to hear all protests of civilian task and delivery order procurements under its Tucker Act jurisdiction.
Under 41 U.S.C. § 4106(f), protests of civilian task or delivery order procurements may be brought in both the Court of Federal Claims and the GAO where the protest is based “on the ground that the order increases the scope, period or maximum value of the contract under which the order is issued.” § 4106(f)(1)(A). Since the 2008 amendments to the Federal Acquisition Streamlining Act (“FASA”), GAO has additionally enjoyed exclusive jurisdiction over any protests of orders in excess of $10 million. 10 U.S.C. § 2304c(e)(4) (Department of Defense (“DoD”)); 41 U.S.C. § 4106(f)(1)(B) (civilian agency). The 2008 amended clauses included sunset provisions with a date of May 27, 2011. While the FY 2011 NDAA extended Title 10’s grant of jurisdiction to September 30, 2016, no similar extension has been passed to extend Title 41 jurisdiction past the May 27 sunset date.
In June, in Technatomy Corp., B-405140, June 14, 2011, GAO ruled that the sunset provision in 41 U.S.C. § 4106(f) did not remove GAO’s jurisdiction over civilian agency order procurements. Instead, GAO ruled that all of 41 U.S.C. § 4106(f) sunsetted, thereby eliminating any restrictions on GAO’s civilian agency task order jurisdiction, effectively reverting back to its pre-FASA, Competition in Contracting Act of 1984 (“CICA”) jurisdiction. Under CICA, GAO’s authority to hear bid protests made no distinction between contracts versus task or delivery orders, and did not require such orders to exceed $10 million. Additionally, under CICA, jurisdiction of these protests was not exclusively limited to GAO. By announcing a reversion to this CICA jurisdiction, this decision meant that GAO asserted that it could hear a challenge over any civilian task or delivery order award, regardless of dollar figure, and that GAO’s jurisdiction over these protests was no longer exclusive.
At that time, it was unclear whether the Court of Federal Claims would agree with GAO’s interpretation of the § 4106(f) sunset clause. Earlier this week, in MED Trends, Inc. v. United States, No. 11-420 (Fed. Cl. Sept. 13, 2011), Judge Bruggink addressed this in the affirmative.
On June 24, 2011, MED Trends challenged the award of a task order for information technology services issued by the DOL, acting through OSHA under the VETS GWAC vehicle. Shortly thereafter, the government moved to dismiss the protest asserting that the court lacked jurisdiction over this task order. Although the government conceded that a literal reading of the sunset provision meant that all of § 4106(f) was vacated, it argued that the legislative history demonstrated that Congress intended the sunset provision to repeal only the portion of that section granting jurisdiction to GAO over any protest of a FASA task order above $10,000,000 – the specific addition from the 2008 amendment. Based on a strict reading of the statute, Judge Bruggink disagreed, reading the term “subsection” to mean the entire division (f) of § 4106. In the absence of § 4106(f), Judge Bruggink concluded, the court’s jurisdiction defaulted to its general jurisdiction over bid protests under the Tucker Act (28 U.S.C, § 1491(b)(1)). Unlike CICA, the Tucker Act does not distinguish between protests of task order procurements and contract awards and contains no language precluding the adjudication of protests of task order procurements.
Under this ruling, the Court of Federal Claims now enjoys jurisdiction over civilian task and delivery orders of any dollar amount and under any theory of law. Notably, since the previously parallel jurisdiction over DoD task and delivery orders under Title 10 was extended on January 7, 2011 to run through September 30, 2016, this means that – for the time being – the Court, with GAO, will have jurisdiction over all civilian task and delivery order procurements but will lack jurisdiction over DoD task order procurements protests not challenging the scope, period or value of the contract.