The saga began with the passage of the 2008 National Defense Authorization Act. While the Act contained a general prohibition barring bid protests of task and delivery order awards (excluding challenges to scope, period, or maximum value), it granted the GAO exclusive jurisdiction over bid protests of civilian and defense agency task and delivery order awards valued at over $10 million. The Act also included a sunset date – May 27, 2011. The reach of the Act's sunset provision would prove to be critical in shaping the GAO's and the Court of Federal Claims' jurisdiction over bid protests of civilian agency task and delivery order awards.
As the sunset date approached, Congress sought to extend the
GAO's exclusive bid protest jurisdiction over civilian and
defense agency task and delivery order awards valued at over $10
million. A close reading of the legislation revealed, however, that
the extension applied only to defense agency task and delivery
order awards valued at over $10 million. Congress subsequently
introduced bills to rectify the omission. See H.R. 899; S.
498. However, the sunset date came and went without the bills
becoming law.
The jurisdictional void was filled quickly. Several weeks after
the sunset date passed, the GAO concluded that the plain meaning of
the sunset provision rendered it applicable to the entire statutory
"subsection" – i.e., the general bid
protest prohibition and the exclusive grant of jurisdiction to the
GAO over bid protests of task and delivery order awards valued at
over $10 million. See Technatomy Corp., B-405130, 2011 CPD
¶ 107 (Comp. Gen. June 14, 2011). As a result, the GAO held
that it possesses jurisdiction over bid protests of civilian task
and delivery awards under its original Competition in Contracting
Act ("CICA") jurisdiction. Id.
The Court of Federal Claims likewise held recently that it
possesses bid protest jurisdiction over civilian task and delivery
order awards. Med Trends Inc. v. United States, 2011 WL
4037418 (Fed. Cl. Sept. 13, 2011). The Court also reasoned that the
plain meaning of the sunset provision made it clear that the entire
statutory "subsection" expired. Id. As such, the
Court concluded that it possesses bid protest jurisdiction over
civilian agency task and delivery order awards under the Tucker
Act.1 Id.
In sum, until the pending Congressional bills become law, the GAO
and the Court of Federal Claims have agreed that neither the grant
of exclusive jurisdiction to the GAO, the general bid protest
prohibition, nor the $10 million jurisdictional threshold applies
to protests of civilian task and delivery order awards.
Disappointed offerors can thus file bid protests of civilian agency
task and delivery order awards—irrespective of the value
of the award—at either the GAO or the Court of Federal
Claims. The same does not hold true, however, for protests of
defense agency task and delivery order awards. Timely legislation
was passed with respect to these protests. Disappointed offerors
may only file protests of defense agency task and delivery order
awards valued at over $10 million at the GAO.
Footnotes
1. The Tucker Act confers jurisdiction upon the Court of Federal Claims to hear certain types of cases, including those where the government is a party to a contract. 28 U.S.C. § 1491.
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