GAO’s Jurisdiction Over Task Order Protests, Revisited
December 6, 2016
At the beginning of the fiscal year, Jackson Kelly reported on the expiration of GAO’s jurisdiction to hear protests based on task order awards over $10 million by civilian agencies. GAO’s jurisdiction over civilian agency Task Orders was initially conferred in 2008 and reinstated in 2012. In 2012, Congress established a sunset date of September 30, 2016, for GAO’s jurisdiction over these Task Orders. The jurisdiction ended as scheduled when Congress failed to pass a 2017 NDAA extending it. GAO’s jurisdiction over DoD Task Orders over $10 million is separately conferred and is permanent. Last week, GAO addressed the limits of its current authority in Analytic Strategies LLC; Gemini Industries, Inc., B-413758.2; B-413758.3 (November 28, 2016) (“Analytic”).
In the absence of explicit jurisdiction over civilian Task Order protests, GAO reverts to the protest jurisdiction granted under the Federal Acquisition Streamlining Act (FASA), which was passed in 1994 and limits GAO’s jurisdiction to protests alleging that the Task Order award increased the scope, period, or maximum value of the overall contract under which the award was made—an exceptionally high bar. The Task Order at issue in Analytic contemplated a single cost plus award fee task order awarded on a best value basis. The solicitation estimated the value of the Task Order at approximately $130 million over the course of a one year base period and four one year options.
In Analytic, GAO held that it no longer has jurisdiction over Task Orders issued under any civilian agency’s Indefinite Quantity/Indefinite Delivery (ID/IQ) contract—even when the task order itself is issued for services provided to a Department of Defense (DoD) agency. In other words, the parties to the underlying contract are the controlling factor, irrespective of which agency will ultimately receive the procured item or service.
The protest involved two offerors’ challenges to the exclusion of their proposals under a Task Order request issued by the General Services Agency (GSA) for mission support services to the Joint Improvised-Threat Defense Agency (JIDA). The Task Order was issued under GSA’s One Acquisition Solution for Integrated Services (OASIS) contract. The OASIS contract allows agencies to procure services through Task Order awards. Analytic argued that GAO had jurisdiction over its protest under 10 USC § 2304c(e), and not 41 USC § 4106(f) because the service here will ultimately be provided to a Department of Defense Agency, will be funded by DoD appropriations, and incorporates various DoD regulations. Title 10 of the US Code governs the Armed Forces, while Title 41 governs Public Contracts. GAO held that these factors were immaterial, as there was no dispute that the task order would be issued under a civilian agency’s ID/IQ contract. Therefore, GAO held that it did not have jurisdiction, as it no longer has jurisdiction over any Title 41 procurement.
Interestingly, a third unsuccessful offeror, Blue Water Federal Solutions, Inc., filed a protest before September 30, 2016, and GAO determined that it did have jurisdiction over that protest, docketing it as B-413758.1. Thus, GAO has determined that protests filed before September 30, 2016, but still pending, are appropriately within its authority. A decision in BlueWater has not been issued yet. It remains to be seen, of course, whether the 2017 NDAA will reinstate GAO’s jurisdiction over these types of Task Orders. Jackson Kelly will continue to monitor and report on developments in this area.
Carrie Willett is responsible for the contents of this Article.
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