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On December 14, 2016, President Obama signed H.R. 5995 into law, removing the sunset provision from 41 U.S.C. § 4106 for jurisdiction over task order protests valued at more than $10 million.  The GAO Civilian Task and Delivery Order Protest Authority Act of 2016 establishes permanent jurisdiction at the Government Accountability Office over protests of civilian task and delivery orders over $10 million under multiple-award IDIQ contracts.
Continue Reading UPDATE: GAO Jurisdiction over Task Order Protests Valued at More Than $10 Million Restored

Government contractors hoping to challenge a civilian agency’s award of a task or delivery order may be out of luck, at least temporarily. Prior to September 30, 2016, the Government Accountability Office (“GAO”) had exclusive jurisdiction over protests of civilian task and delivery orders valued at more than $10 million under multiple-award IDIQ contracts. The National Defense Authorization Act (“NDAA”) for Fiscal Year 2008 amended the Federal Acquisition Streamlining Act (“FASA”) to grant GAO this jurisdiction, Pub. L. No. 110-181, 122 Stat. 3, 237 (2008); the NDAA for Fiscal Year 2012 then established a sunset date for this jurisdiction of September 30, 2016, 41 U.S.C. § 4106(f). Any such protests filed after September 30, 2016, are now outside GAO’s jurisdiction, regardless of when the underlying contract was awarded. 41 U.S.C. § 4106(f). However, contractors retain the right to protest military task and delivery orders valued over $10 million, 10 U.S.C. § 2304c(e), as well as civilian or military task and delivery orders which they allege increased the scope, period, or maximum value of the underlying contract, id. and 41 U.S.C. § 4106(f). The Court of Federal Claims’ jurisdiction, which is limited to civilian or military task order protests that allege increased scope, period, or maximum value of the underlying contract, is unaffected by the NDAA sunset provision. 10 U.S.C. § 2304c(e); 41 U.S.C. § 4106(f).
Continue Reading GAO Loses Jurisdiction Over Task Order Protests Valued at More Than $10 Million

By: Townsend Bourne

In a bid protest decision regarding the propriety of agency corrective action, GAO recently carved out a new exception to its general rule that those who do not participate in a protest that engenders corrective action are not interested parties to challenge the corrective action. In North Wind, Inc.; Earth Resources Technology, Inc., B-404880.4 et al., 2011 CPD ¶ 246 (Comp. Gen. Nov. 4, 2011), North Wind, Inc. (“North Wind”) protested NASA’s initial award of a contract to Navarro Research and Engineering, Inc. (“Navarro”) and subsequently raised additional challenges to the award in a supplemental protest that followed receipt of documents from the Agency. In response to North Wind’s supplemental protest, NASA decided to take corrective action. Earth Resources Technology, Inc. (“ERT”), another disappointed offeror in the competition, did not initially file its own protest challenging the award to Navarro.Continue Reading A New Twist On Establishing Interested Party Status At The GAO

By Marko W. Kipa

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.
 Continue Reading Task And Delivery Order Protests: Taking Aim At A Moving Target

By Marko W. Kipa

Many believed that the Government Accountability Office’s (“GAO’s”) jurisdiction over bid protests of civilian agency task and delivery order awards valued at over $10 million expired on May 27, 2011. This belief was based on the fact that certain broadened jurisdiction over civilian agency task and delivery order protests granted by the 2008 National Defense Authorization Act (“2008 Act”) expired on that date. With the expiration of the broadened jurisdictional grant found in the 2008 Act, many thus contended that a contractor would not be able to protest a civilian agency task or delivery order award at the GAO unless the protest alleged that the order exceeded the scope, period or maximum value of the underlying contract. Protests of Department of Defense task and delivery order awards valued at over $10 million were not similarly affected because Congress extended the GAO’s exclusive, broadened jurisdiction over these protests through the 2011 National Defense Authorization Act.
 Continue Reading The GAO Holds It Possesses Jurisdiction Over Bid Protests of Civilian Agency Task and Delivery Order Awards

By Anne Perry and Kerry O’Neill

In an April 6, 2011 decision, the GAO overturned the award of a $24.6 million task order to Booz Allen Hamilton, Inc. (“BAH”), sustaining the protest of the incumbent Solers, Inc. (“Solers”). This procurement has a long and storied protest history. The Defense Information Systems Agency (“DISA”) originally awarded the contract to Solers in September 2010. BAH filed a protest, in response to which DISA took corrective action. After the reopening of discussions and evaluation of offerors revised proposals, the Agency awarded the contract to BAH, despite Solers’ technical superiority, based on BAH’s lower price and superior past performance. This time Solers protested.
 Continue Reading Fixed Price Contracts – Contingencies And Assumptions Not Welcome

By Marko W. Kipa

Over the past three years, government contractors have been able to pursue bid protests at the Government Accountability Office (the “GAO”) challenging awards of defense and civilian task and delivery orders valued at over $10 million. This expanded jurisdiction, however, is set to expire on May 27, 2011. Congress appeared to have addressed the issue in the National Defense Authorization Act for Fiscal Year 2011 (the “Act”) by including a provision extending the GAO’s expanded jurisdiction until September 30, 2016, but, for whatever reason, the Act captured only defense task and delivery order awards. This omission not only was strange, but it also seemed to run counter to the spirit of the original grant of task/delivery order jurisdiction. We analyzed the Act’s legislative history here and concluded that it did not provide a basis for only partially extending the GAO’s expanded jurisdiction. Shortly thereafter, the U.S. House of Representatives (the “House”) and the U.S. Senate (the “Senate”) introduced bills targeted at extending the GAO’s jurisdiction over civilian task and delivery order bid protests. See H.R. 899; see also S. 498.
 Continue Reading Making Amends: Countdown To May 27, 2011