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

A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because the protest challenged the Government’s decision to obtain services through a task order competition under an Indefinite Delivery/Indefinite Quantity (“IDIQ”) Government-Wide Acquisition Contract (“GWAC”) rather than through a General Services Administration (“GSA”) Schedule contract.
Continue Reading Non-Protestable Task Order Procurement Decision Shuts Out Incumbent Contractor

1. Repeal of Sunset Dates for Protest Authority Over Certain Task Orders

Effective September 3, 2013, FAR 16.505 was amended to eliminate the sunset dates for protests against the issuance of an order under a task-order or delivery-order contract in excess of $10 million by the DoD, NASA and the Coast Guard. Previously, the FAR stated that the authority to bring such a protest would expire on September 30, 2016 and made no distinctions as to which agency the rule applied. The new rule now expressly states that there is no such expiration date for protests against the placement of an order by or on behalf of the DoD, NASA and Coast Guard. However, for the time being, the September 2016 sunset date remains for other agencies. (FAR Case 2013-11).


Continue Reading Details: Highlights from the August & September 2013 Federal Register

By: Anne Perry

While the number of protests has steadily increased over the past five years, the success rate for protesters in Fiscal Year 2011 was at its lowest during that time. GAO reported to Congress its Bid Protest Statistics for Fiscal Year 2011 on November 15, 2011 and it reflects a bit of a tougher year for protesters but no real significant changes from last year.


Continue Reading Protests Rise; Winners Fall: GAO Releases Its Latest Protest Statistics

By W. Bruce Shirk

We’ve previously complained about the FAR Council’s tendency to take too much time to issue rules that entail consideration of complex subject matter, as indicated, for example, by the 13 years during which the Council dallied before issuing final rules for commercial off the shelf items, discussed here.  Recent events suggest, however, that there may be good reason for the Council’s dilatory behavior because, as it turns out, when the Council does move quickly in response, say, to a legislative change, it tends to come up with the wrong answer.
 


Continue Reading Who’s In Charge? The GAO, the FAR Council, and Jurisdiction Over Task Order Bid Protests

By W. Bruce Shirk and Kerry O’Neill

The U.S. Court of Federal Claims’ (“COFC”) decision in Jacobs Technology, Inc. v. United States, No. 11-180C, 2011 WL 2044581 (Fed. Cl. May 26, 2011) (“Jacobs Technology”) does double duty, affirming once again the availability of the COFC as a convenient forum for aggrieved offerors challenging a resolicitation and providing us a useful primer on the perennial issues of jurisdiction, ripeness, standing, and agency discretion in the context of pre-award protests.
 


Continue Reading “Give Me Your Huddled Masses”: COFC Still Beckons To Protesters

By John W. Chierichella

B&P is a precious resource, a pool of investment dollars. Used wisely, B&P can perpetuate one’s existing position in the market, grow existing product lines, and expand into new fields of endeavor. The prudent use of B&P can be the difference between achieving short, intermediate and/or long term business goals and failing to do so. All too often, however, companies can fall into patterns of conduct that effectively vitiate that investment.
 


Continue Reading 10 Ways To Waste Your B&P

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 Laura Durity

A well-known adage advises: “To be early is to be on time, to be on time is to be late, to be late is unacceptable.”  Too often, however, this warning goes unheeded by contractors submitting proposals.  Despite countless graphic illustrations of the consequences of missed deadlines, contractors continue to submit proposals within minutes of deadlines. Given that agencies, in accordance with FAR 52.215-1(c), will reject late proposals out of hand with very few exceptions, cutting it too close can be a big mistake.
 


Continue Reading Why Delay? Submit Proposals Early

By Anne B. Perry and Jessica M. Madon
 

On July 16, 2010, the Court of Federal Claims (“COFC”) determined that a Government Accountability Office (“GAO”) bid protest recommendation that an awardee, Turner Construction Co. (“Turner”), be disqualified on the basis of organizational conflicts of interest (“OCI”) under an Army Corps of Engineers (the “Army”) hospital renovation contract was irrational. See Turner Construction Co., Inc. v. United States, Fed. Cl., No. 10-195C, July 16, 2010. We previously discussed the implications of the GAO decision here.
 


Continue Reading A Retreat From Hard Line OCI Decisions? The COFC Overturns A Controversial GAO Ruling