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When deciding where to file a bid protest, the most fundamental consideration is perhaps the most obvious one: does your desired venue have jurisdiction to hear your arguments?

In a recent decision, Cleveland Assets, LLC v. United States , the Federal Circuit may have changed that analysis for certain Court of Federal Claims (COFC) bid protests.

Continue Reading Did the Federal Circuit Narrow the COFC’s Bid Protest Jurisdiction?

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With legislation to extend the GAO’s protest jurisdiction over civilian agency task and delivery order procurements stalled in Congress, GAO has concluded that its protest jurisdiction over those procurements will not only continue after the May 27, 2011 sunset date, but will expand.  The Federal Acquisition Streamlining Act (“FASA”) limited GAO’s protest jurisdiction to protests on the “ground that the order increases the scope, period or maximum value of the contract under which the order is issued” or involving orders in excess of $10 million. 10 U.S.C. § 2304c(e)(4) (Department of Defense (“DoD”)); 41 U.S.C. § 253j(e) (civilian agency). Since the 2008 amendments to FASA, GAO has enjoyed exclusive jurisdiction over protests of both DoD and civilian agency task and delivery orders. The 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 was passed to extend Title 41 jurisdiction past the May 27 sunset date.

On May 23, 2011, Technatomy Corporation protested the award of a task order issued by DISA under a GSA ID/IQ contract. Shortly thereafter, DISA filed a Motion to Dismiss arguing that GAO’s jurisdiction over civilian task order procurements sunsetted by operation of law on May 27, 2011, citing 41 U.S.C § 253j(e).

GAO denied that motion, ruling that the sunset provisions in 41 U.S.C. § 253j(e) jurisdiction did not remove GAO’s jurisdiction over civilian agency order procurements. Technatomy Corp., B-405140, June 14, 2011. Instead, GAO ruled that all of 41 U.S.C. § 253j(e) 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, the Technatomy decision means that GAO now asserts that it can hear a challenge over any civilian task or delivery order award, regardless of dollar figure, and that GAO’s jurisdiction over these protests is no longer exclusive.

Notably, to the extent that the Court of Federal Claims agrees with GAO’s interpretation of the § 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.

Also of note in this decision is GAO’s analysis of whether the protest of this DISA task order award decision properly falls under Title 10 or Title 41 jurisdiction. The underlying contract vehicle, GSA VETS, was with GSA, a civilian agency. However, the task order competition was conducted by DISA, a DoD agency. Thus, there was a question of whether GAO’s jurisdiction over the protested task order award was authorized under Title 10 or Title 41. GAO’s interpreted the statutory language of Title 41 §§ 3101(c), 4103, to dictate that jurisdiction over task or delivery orders is determined by the agency issuing the underlying contract. As GSA issued the underlying contract, jurisdiction over the task order was authorized by Title 41, not Title 10.

With this ruling, GAO has potentially opened the door to new protests previously barred by the strict jurisdictional limits of § 253j(e), such as task order awards less than $10 million. Additionally, 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 – GAO will have broader jurisdiction over civilian task and delivery order procurements than they have over DoD task order procurements. It will be interesting to see if GAO’s decision spurs Congress to reinstate § 253j(e), but in the meantime GAO, and potentially the Court of Federal Claims, may entertain a broader protest jurisdiction over civilian task and delivery order procurements.