GAO to reaffirms right to hear task order protests

Even though the legislative authority expired in May, GAO determined it still can decide task order complaints because of the Competition in Contracting Act.

The Government Accountability Office reopened the door to hear protests of task order awards made by civilian agencies.

GAO determined Tuesday that even though the legislative authority for them to hear task order protests expired May 27, the Competition in Contracting Act of 1984 keeps their authority alive.

“There was an express sunset provision that some argued removed GAO’s jurisdiction to hear task orders by civilian agencies,” said Ralph White, the agency’s managing associate general counsel for procurement law, in a statement. “But that sunset provision also removed the underlying rules that initially barred GAO from hearing such task orders. With the underlying rule removed, GAO’s jurisdiction reverts to its original jurisdiction for its bid protest function — i.e., the jurisdiction set forth in the Competition in Contracting Act of 1984 — under which GAO had jurisdiction to hear such protests.”

Congress passed a law last year extending the right of GAO to hear bid protests of task orders awarded by the Defense Department. But the extension for civilian agencies had not passed before the end of May, when the legislative authority in the 2008 Defense authorization bill sunset.

GAO made the determination after the Defense Information Systems Agency requested GAO dismiss a bid protest of a task order awarded through the General Services Administration.

“Our view of the sunset provision is based on the plain meaning of the text of the 2008 NDAA,” GAO wrote in its determination. “The starting point of any analysis of the meaning of a statutory provision is the language used by Congress. In sum, the plain meaning of 41 U.S.C. § 253j(e)(3) eliminates any bar to our jurisdiction to hear and issue decisions concerning bid protests arising from task or delivery orders of any value. For this reason, we conclude that we have jurisdiction over the task order protest here.”

GAO stated that prior to the Federal Acquisition Streamlining Act (FASA), it had statutory authority to hear protests, no matter if they were full-and-open contracts or task orders. Under FASA, Congress removed GAO’s authority to hear task and delivery order protests.

But the 2008 Defense authorization bill gave GAO back the authority by modifying FASA to hear task and delivery order protests that were worth more than $10 million. Lawmakers wanted more competition over large task order contracts.

Now that the provision has expired, GAO stated FASA’s modification remains and gives it the authority to hear protests under the Competition in Contracting Act (CICA), White said.

Michael Golden, a partner with Pepper Hamilton in Washington and a former GAO managing associate general counsel for procurement law, said the agency took the usual path to make this determination: waiting for a case to come before it.

Golden said it’s good GAO made their decision public sooner than later because in the past similar issues caused confusion in the contracting community.

He said until recently GAO and the federal court were at odds with the Justice Department over preference for HUBZone companies in small business contracting. The disagreement lasted 18 months until March when the Federal Acquisition Regulations Council issued an interim rule establishing equal priority for HUBZone, 8(a) and service-disabled veteran-owned firms.

Golden said the one big question that remains is whether the Court of Federal Claims now also has authority over protests of task order contracts.

Golden said the court has authority to hear protests under the Tucker Act.

“When Congress granted the protest authority for task orders, they said it’s only for GAO,” he said. “The implication was the Court of Federal Claims couldn’t hear the protests. But now that for civilian agencies it’s lapsed, does it have impact on the Court of Federal Claims? You will not be able to know until someone files a protest during this period or until Congress acts on the authority.”

Congress still is expected to pass a law to give GAO statutory authority in the coming months. Both the House and Senate have bills that grant GAO the right to hear protests of task orders for civilian agencies, and the House included a provision in the Defense authorization bill it passed in May.

Vendors have not overwhelmingly used this protest authority. In 2010, GAO reports it received 189 protests of task order awards out of more than 2,200 total bid protests.

Some of the larger, more noteworthy, protests include several on GSA’s Networx telecommunications contract and the Homeland Security Department’s award to Northrop Grumman for St. Elizabeth’s IT infrastructure that was eventually pulled back and re-awarded last week to General Dynamics.

“No one is disputing the need for continuing the jurisdiction,” Golden said. “GAO has been able to handle it without additional resources. I think it’s been positive and I think Congress looks at it that way.”

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