Link: GAO Opinion
Agency: Department of Defense
Disposition: Request for dismissal denied.
Keywords: Task Order Protest
General Counsel P.C. Highlight: GAO’s jurisdiction to hear protests concerning task or delivery orders under ID/IQ contracts valued in excess of $10 million was authorized under 41 U.S.C. § 253j, but that this authority expired on May 27, 2011, when a sunset provision in section 253j(e)(3) took effect.
Technatomy Corporation protests the issuance of a task order to under a solicitation by the Department of Defense, Defense Information Systems Agency (DISA), for support of the U.S. Army Information Technology Agency.
The order was issued under a multiple-award indefinite-delivery/indefinite-quantity (ID/IQ) contract awarded by the General Services Administration (GSA). This decision addresses DISA’s request that GAO dismiss the protest. The agency argues that because this protest concerns a challenge to a task order issued under an ID/IQ contract authorized under Title 41 of the U.S. Code, the Government Accountability Office (GAO) does not have jurisdiction to hear the protest. DISA argues that GAO’s jurisdiction to hear protests concerning task or delivery orders under ID/IQ contracts valued in excess of $10 million was authorized under 41 U.S.C. § 253j(e)(1) (2006 & Supp. III 2009), but that this authority expired on May 27, 2011, when a sunset provision in section 253j(e)(3) took effect.
GAO first examines the legislative history of its jurisdiction. The Competition in Contracting Act of 1984 (CICA) established GAO’s statutory authority to hear bid protests concerning challenges to the terms of solicitations and the award or proposed award of contracts. Prior to 1994, the statutory authority of GAO under CICA did not distinguish between protests of contract awards and protests of task or delivery orders, as discussed more fully below. Then, in 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA), which, as relevant here, provided statutory guidance for the award of ID/IQ contracts. FASA also amended CICA by limiting the jurisdiction of GAO with respect to protests of task or delivery orders placed under ID/IQ contracts under both Title 10 and Title 41 of the U.S. Code. After 1994, under FASA, protests over task or delivery orders were barred unless these protests alleged that the order increased the scope, period, or maximum value of the underlying contract through which the orders were issued.
In 2008, NDAA amended FASA and, in essence, expanded the jurisdiction of GAO under FASA to include protests of task or delivery orders valued in excess of $10 million. GAO stated that the sunset provision in 41 U.S.C. § 253j(e)(3) applies to the entirety of subsection 253j(e). As a result, the entirety of subsection 253j(e) has no effect–including both the bar on task order protests under FASA, and the exceptions to that bar under FASA, and the 2008 NDAA. Accordingly, GAO’s jurisdiction reverts to that originally provided in CICA. Here, the plain meaning of the sunset provision unambiguously refers to the whole of subsection 253j(e). As a result of the sunset of 41 U.S.C. § 253j(e), the jurisdiction of GAO over protests of task or delivery orders has, effectively, reverted to the jurisdiction GAO had under CICA, prior to its amendment by FASA. Prior to FASA, GAO’s statutory authority under CICA to hear protests did not distinguish between protests of contracts, and protests of task or delivery orders. Consistent with this authority, GAO heard protests prior to the passage of FASA concerning the issuance of task or delivery orders, including challenges to orders that exceeded the scope of the underlying ID/IQ contract, as well as protests that did not involve challenges to scope. In sum, the plain meaning of 41 U.S.C. § 253j(e)(3) eliminates any bar to GAO’s jurisdiction to hear and issue decisions concerning bid protests arising from task or delivery orders of any value. For this reason, GAO concludes that it has jurisdiction over the task order protest here. GAO concludes that it has jurisdiction to complete its review of protests concerning the issuance of task orders that were filed prior to May 27, 2011, including the order challenged here by Technatomy. The request for dismissal is denied.