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GAO authority over protests of task/delivery orders - Technatomy Corp. decision

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Technatomy Corporation, B-405130 June 14, 2011.

DIGEST: The Government Accountability Office (GAO) will not dismiss a protest concerning the issuance of a task order under the authority of Title 41 of the U.S. Code, notwithstanding the sunset of 41 U.S.C. Sect. 4106(f) (2006 & Supp. IV 2010) (formerly codified at 41 U.S.C. Sect.

253j(e) (2006 & Supp. III 2009)). The sunset provision eliminated both a pre-existing restriction on GAO's jurisdiction to hear protests concerning the issuance of task or delivery orders under multiple-award indefinite- delivery/indefinite-quantity contracts, and a temporary partial waiver of that restriction concerning task orders over $10 million. With the elimination of both the underlying restriction, and the partial waiver of that restriction, 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.

See the decision online at http://www.gao.gov/decisions/bidpro/405130.pdf

Thoughts?

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Two things for me.

1) When I had discussed this with 2 GAO lawyers at an acquisition forum earlier this year, they thought you would follow the money applied to the Task Order to determine Title 10 vs Title 41 rules. Here they went with what agency issued the ID/IQ, not what agency issued or funded the order. (Important to those of us doing assisted acquisitions)

2) S.498 got held at the desk because the CBO estimate stated that

"S. 498 would amend federal law to extend the process for protesting the awards of certain

civilian agency procurements. Under the legislation, contractors could protest certain task

and delivery order contracts through September 30, 2016. In addition, the legislation would provide that no funds are authorized to be appropriated for processing protests made under the bill."

and further that...

"Based on that information, CBO expects that complying with the bill would increase the administrative expenses of federal agencies for contract personnel, lawyers, and general administrative overhead. Such expenses would generally be paid from agencies? salaries and expense budgets, which are subject to annual appropriation. CBO estimates that such costs would total a few million dollars over the 2011-2016 period. "

Seems to me that estimate of a few million dollars to allow for protests of Task Orders over $10M is an awful lot less than what NOT enacting S.498 will now cost based on this decision. :D

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The statutes about protests against task and delivery order awards, 41 USC ? 4106(f) and 10 USC ? 2304c(3), are written differently. As a result:

1. With the sunset of 41 USC ? 4106(f), which applies to civilian agencies, not only are protests now authorized against all task and delivery orders, regardless of dollar value, but GAO no longer has exclusive jurisdiction. Protests may now be filed with the Court of Federal Claims.

2. The rule permitting protests against task and delivery order awards valued in excess of $10 million under 10 USC 2304c(g), which applies to the military and, I think, NASA, continues until September 30, 2016. However, when that expires, the general prohibition against protests against task and delivery order awards will remain in place.

Thus, only the civilian agencies will suffer as a result of the sunset of 41 USC ? 4106(f).

I'm pretty sure that I'm right about all this, but further analysis is necessary to confirm my interpretation.

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It was something of a surprise that the GAO went beyond the instant case, in which all that was needed was to say the protest was timely filed under the old rule, and provided a deeper analysis with broader applicability, very useful guidance which should be applauded.

At the risk of oversimplifying, all the changes to CICA from FASA and the 2008 NDAA restrictions rode off into the sunset, leaving CICA still in place, along with GAO jurisdiction, so "the plain meaning of 41 U.S.C. sect. 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."

Why should a holder of a MATOC IDIQ contract not have the right to protest an award the same way as a full and open award?

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I don't think GAO is committing on much of anything for the present with this statement:

Even if we were to view the sunset provision as barring our jurisdiction as of May 27, 2011, as DISA argues, it would not end our jurisdiction to complete our review of protests filed with our Office prior to the effective date of the sunset on May 27, 2011. In other words, even if we were to agree with DISA concerning the general effect of the sunset provision, we would not view the sunset as affecting pending protests.

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