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MDJohn

Task Order Bid Protest for TOs under $10 Million - even COFC?

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As I understand it, FY 2012 NDAA revived the former rule that GAO has no jurisdiction to hear a bid protest on an IDIQ Task Order if the TO is less than $10 million (unless the protest challenges the scope, period, or maximum value of the underlying contract).

Just to make sure I'm not missing anything, does the FT 2012 also reinstate the rule that no IDIQ task order bid protests (other than those challenging an increase in scope) can be filed at COFC?

Thanks.

John

The GAO in Kevcon ruled:

"We do not have jurisdiction to hear Kevcon’s challenge because it concerns a task order valued at less than $10 million. In this regard, the government estimate for the task order was $2.7 million, and Kevcon’s quoted price was $2.64 million. Request for Dismissal at 2.

In 1994, the Federal Acquisition Streamlining Act (FASA) barred protests concerning task or delivery orders issued under ID/IQ contracts, other than those challenging the scope, period, or maximum value of the underlying contract. See Pub. L. No. 103-355, 108 Stat. 3243, 3264 (1994) (codified in Titles 10 and 41 of the U.S. Code). The Fiscal Year (FY) 2008 National Defense Authorization Act (NDAA) amended FASA to grant GAO jurisdiction to hear protests concerning task or delivery orders valued at more than $10 million (in addition to those concerning scope, as discussed above). See Pub. L. No. 110-181, 122 Stat. 3, 237 (2008). The FY 2008 NDAA amendment to FASA also contained a sunset provision, which stated that the amended “subsection shall be in effect for three years.” Id.

As explained in our decision in Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶ 107, the sunset provision of the FY 2008 NDAA took effect on May 27, 2011, with regard to procurements conducted under Title 41 of the U.S. Code. Despite this sunset, we concluded that, with respect to Title 41 procurements, the plain language of the FY 2008 NDAA resulted in the elimination of FASA bar on protests; consequently, our Office had jurisdiction to consider protests concerning task or delivery orders of any size. Id. at 4.

On December 31, 2011, the FY 2012 NDAA amended our Office’s jurisdiction, and effectively reinstated the FASA task or delivery order bar and the $10 million exception established under the FY 2008 NDAA. FY 2012 NDAA, Pub. L. 112–81 125 Stat. 1298, 1491 (2011). Specifically, section 813 of the FY 2012 NDAA amended the sunset provision of the FY 2008 NDAA, as follows:

Paragraph (3) of section 4106(f) of title 41, United States Code, is amended to read as follows:

“(3) EFFECTIVE PERIOD.--Paragraph (1)(
B)
and paragraph (2) of this subsection shall not be in effect after September 30, 2016.”.

Id.

As a result of this amendment, the jurisdiction of our Office concerning task or delivery orders, under both Titles 10 and 41, returns to its status before May 27, 2011. Specifically, our Office has jurisdiction to hear protests concerning task or delivery orders issued under ID/IQ contracts only where: (1) the protest challenges the scope, period, or maximum value of the underlying contract; or (2) the order is valued at more than $10 million."

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To help answer my own question, I see that 41 USC 4106(f)(1) and (2), as amended by Pub. L. 112-81, December 31, 2011, answer the question. Subsection (f) (1) provides that no protests of TOs and DOs are authorized, except for the exceptions listed in paragraphs (1)(A) and (1)(B), and Subsction f(2) provides that the Comptroller General has exclusive jurisdiction of a protest authorized under paragraph 1(B).

So, it appears the general rule is that no TO/DOs may be protested, anywhere, except for those exceeding scope and those in excess of $10 million and protests of TOs in excess of $10 million may only be filed at GAO. So, the COFC does not have jurisdiction over a TO bid protest (except for exceeding scope), regardless of the dollar value of the TO.

41 USC 4106(f):

f) Protests. -

(1) Protest not authorized. - A protest is not authorized in

connection with the issuance or proposed issuance of a task or

delivery order except for -

(A) a protest on the ground that the order increases the

scope, period, or maximum value of the contract under which the

order is issued; or

(B) a protest of an order valued in excess of $10,000,000.

(2) Jurisdiction over protests. - Notwithstanding section 3556

of title 31, the Comptroller General shall have exclusive

jurisdiction of a protest authorized under paragraph (1)(B).

(3) Effective period. - Paragraph (1)(B) and paragraph (2) of

this subsection shall not be in effect after September 30, 2016.

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Please check the current FAR reference - the protest bar was extended for DOD, NASA, and the Coast Guard, but not the civilian agencies. See FAR 16.505(a)(10)(ii) - If you work for the DOD, NASA, or Coast Guard, the answer will be different than for civilian agencies. There is no limit on protests and jurisdiction is not reserved to GAO.

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<p>Per Acquisition.gov HTML version of the FAR as of this morning

16.505(a)

(10)

(i ) No protest under Subpart 33.1 is authorized in connection with the issuance or proposed issuance of an order under a task-order contract or delivery-order contract, except for—

(A ) A protest on the grounds that the order increases the scope, period, or maximum value of the contract; or

33.104.

(B ) A protest of an order valued in excess of $10 million. Protests of orders in excess of $10 million may only be filed with the Government Accountability Office, in accordance with the procedures at 33.104.

(ii ) The authority to protest the placement of an order under this subpart expires on September 30, 2016, for DoD, NASA and the Coast Guard ((10 U.S.C. 2304a(d) and 2304c(e)), and on May 27, 2011, for other agencies (41 U.S.C. 4103(d) and 4106(f)).

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Unfortunately, the FAR referenced above has not been updated to stay current with the law. As per GAO's Kevon decision in March 2012, the FY 2012 NDAA effectively reinstated the FASA task or delivery order bar and the $10 million exception established under the FY 2008 NDAA. As a result of the amendment, the GAO's jurisdiction concerning task or delivery orders returned to its status before May 27, 2011, except that the authority expires on September 30, 2016. This 2016 date now applies to all agencies, not just DoD, NASA and the Coast Guard.

In March 2012, GAO dismissed a task order bid protest filed against a civilian agency on grounds that the TO was less than $10 million, much to my client's consternation. if someone can point out that this was incorrect, then please do so, as there are other potential TO bid protests for TOs less than $10 million that will likely be in the pipeline.

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Please check the current FAR reference - the protest bar was extended for DOD, NASA, and the Coast Guard, but not the civilian agencies. See FAR 16.505(a)(10)(ii) - If you work for the DOD, NASA, or Coast Guard, the answer will be different than for civilian agencies. There is no limit on protests and jurisdiction is not reserved to GAO.

As MDJohn says, the current FAR is out of date. According to the Open FAR Cases report dated May 18, FAR Case 2012-007:

Implements section 813 of the NDAA for FY 2012 (Pub. L. 112-81), which extends the sunset date for protests against the award of task and delivery orders for Title 41 civilian agencies to September 30, 2016.

According to the status report, on May 10 an interim rule was sent to the FAR Secretariat for processing.

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It is good to remember that neither the GAO's or COFC's bid protest jurisdiction is dependent upon FAR rules. Instead, that authority is dependent upon the statutes that grant them bid protest jurisdiction. Thus, if a statute divests either of jurisdiction to hear certain protests, that body does not have to wait for the FAR Councils to promulgate a rule stating it does not have jurisdiction before it can dismiss a protest for lack of jurisdiction. Conversely, if a statute grants either jurisdiction to hear certain bid protests, that body can hear those protests without waiting for the FAR Councils to implement the statute.

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