In September, I wrote about the Court of Federal Claims’ decision in MED Trends, Inc. v. United States, No. 11-420 (Fed. Cl. Sept. 13, 2011), where the Court concluded that it now enjoys jurisdiction over civilian task and delivery order procurements of any dollar value. Prior to this ruling, pursuant to 41 U.S.C. § 4106(f), protests of civilian task and delivery order procurements could be brought in the Court of Federal Claims only where the protest was 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). Under 41 U.S.C. § 4106(f), exclusive jurisdiction of all other task order protests rested with the U.S. Government Accountability Office (“GAO”). With the sunset of the task order jurisdictional provision of § 4106(f)(3), the Court confronted the question of whether their jurisdiction would regress to its pre-2008 Federal Acquisition Streamlining Act of 1994 (“FASA”) jurisdiction or whether it would follow the GAO’s conclusion that the sunset effectively reverted jurisdiction to the pre-FASA, Competition in Contracting Act of 1984 (“CICA”) jurisdiction, which made no distinction between contracts versus task or delivery orders.
Judge Bruggink concluded that the court’s jurisdiction defaulted to its general jurisdiction over bid protests under the Tucker Act (28 U.S.C, § 1491(b)(1)), which 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. This meant that the Court of Federal Claims now enjoys jurisdiction over civilian task and delivery orders of any dollar amount, and under any otherwise cognizable basis of protest. However, the Court denied MED Trends’ protest.
On August 24, 2011, MED Trends filed an appeal to the Federal Circuit of Judge Bruggink’s decision, which ultimately found for the Government on the merits. On October 24, 2011, the U.S. Department of Justice filed a cross-appeal in the case (No. 2011-5128). Although the documents are sealed, it seemly likely that the basis of the Government’s appeal is the determination by the Court of Federal Claims that the Court entertained jurisdiction over this procurement. As Judge Bruggink stated in his opinion, “There is no question that, had this protest been brought one month earlier, [prior to the sunset,] the court would not have been able to exercise jurisdiction.” Notably, having won on the merits, the Department of Justice could not have appealed this decision had MED Trends not opted to file its own appeal first.
It will be interesting to see in the coming months whether the Federal Circuit accepts the Court of Federal Claims (and the GAO’s) reading of § 4106(f)(3). Because Congress has still not amended Title 41 to extend the 2008 NDAA grant of jurisdiction (as it has for Department of Defense task and delivery order procurements), the possibility exists that, if the Federal Circuit disagrees with the Court’s reading of its jurisdiction, the Federal Circuit and GAO could be operating under different interpretations of the same statute. It is likely though that, should the Federal Circuit interpret the sunset clause differently, GAO will modify its practice to conform to the Federal Circuit’s reading of the statute.