HOME  |  CONTENTS  |  DISCUSSIONS  DISCUSSION ARCHIVES  |  BLOG  |  QUICK-KITs|  STATES

Loading

Task or Delivery Order under Indefinite Delivery, Indefinite Quantity Contract

Comptroller General - Key Excerpts

New The Fiscal Year 2012 NDAA amended our jurisdiction to reinstate the FASA task or delivery order bar, as well as the $10 million exception to the bar established under the FY 2008 NDAA (in addition to the exception concerning scope, as discussed above). It also established a new sunset date, whereby the grant of jurisdiction to hear protests in connection with orders issued under the authority and procedures established by Title 41, valued in excess of $10 million, expired after September 30, 2016.

(section deleted)

Here, there is no dispute that the protesters are challenging their elimination from further consideration for a task order that will be issued under a multiple-award IDIQ contract vehicle awarded by GSA, a civilian agency under the authority and procedures set forth in Title 41. There is also no dispute that these protests were filed after September 30, 2016. Thus, it is clear that the protesters filed their protests after the sunset of our jurisdiction to resolve protests in connection with task and delivery orders issued under civilian agency IDIQ contracts.

Analytic Strategies contends that our Office has jurisdiction over its protest under 10 U.S.C. § 2304c(e), rather than 41 U.S.C. § 4106(f), because the task order contemplated here will provide services to a Department of Defense (DoD) agency; will be funded by DoD; and incorporates various DoD regulations.[4] Analytic Strategies’ Response to Agency’s Request for Dismissal at 1-2.

As set forth above, however, there is no dispute that the task order at issue here will be issued under a civilian agency IDIQ, or that these protests were filed after September 30. The protesters’ arguments that we have jurisdiction under Title 10 because of DoD’s role in these procurements are misplaced. We see nothing in the relevant provisions of Titles 10 or 41 that authorize a different result because the agency that will benefit from the task order, will fund the task order, or will place the order, is an agency covered by Title 10. Instead, the statutory scheme under Title 41 sets forth the authority of civilian agencies to award IDIQ contracts, describes the process for ordering against those contracts, and in some instances, limits the jurisdiction of forums like GAO to hear protests in connection with the placement of these orders.

Accordingly, we conclude that the jurisdictional bar to protests applies here because the bar is established under the statutory framework authorizing multiple-award IDIQ contracts within Title 41. Moreover, the protesters do not otherwise argue that the order to be issued under the TOR increases the scope, period, or maximum value of the underlying IDIQ contract. In short, our Office does not have jurisdiction to consider these protests.

The protests are dismissed.  See Analytic Strategies LLC; Gemini Industries, Inc. B-413758.2, B-413758.3: Nov 28, 2016


The Fiscal Year 2012 NDAA amended our jurisdiction to reinstate the FASA task or delivery order bar, and the $10 million exception to the bar established under the FY 2008 NDAA (in addition to the exception concerning scope, as discussed above). It also established a new sunset date, whereby the grant of jurisdiction to hear protests of orders issued pursuant to Title 41, valued in excess of $10 million, expired after September 30, 2016. Specifically, as it is relevant to the protest at issue, section 4106(f) of Title 41 was amended to provide as follows:

(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.

41 U.S.C. § 4106(f).

Here, there is no dispute that Ryan filed its protest on October 14, 2016 challenging a task order issued by HUD under a multiple-award IDIQ contract vehicle awarded by NIH. Thus, it is clear that Ryan filed its protest after our specific authority to resolve protests in connection with civilian agency task and delivery orders in excess of $10 million had expired. While Ryan asks that we “consider grandfathering” its protest, Ryan’s Response to Agency Dismissal Request at 1 (Oct. 25, 2016), we have no authority to do so. As set forth above, our jurisdiction to resolve a protest in connection with a civilian agency task order, such as the one at issue, expired on September 30, 2016, pursuant to the express terms of 41 U.S.C. § 4106(f)(3). Moreover, the protester does not otherwise argue that the order at issue increases the scope, period, or maximum value of the underlying IDIQ contract. Accordingly, our Office does not have jurisdiction to consider the protest.

The protest is dismissed.  (Ryan Consulting Group, Inc. B-414014: Nov 7, 2016)


Pursuant to 10 U.S.C. § 2304c(e)(1), our Office has jurisdiction to entertain protests in connection with the issuance or proposed issuance of a task or delivery order only if the order has a value in excess of $10,000,000, or it is alleged that the order increases the scope, period, or maximum value of the contract under which the order is placed. Karthik does not argue that the order here exceeds the scope, period, or maximum value of the underlying contract; rather, it contends that we have jurisdiction over its protest because the potential value of the order, as announced by the Navy in the on-line SeaPort Enhanced Order report, is over $33 million. In response, the agency maintains that over $30 million of the $33 million represents cash stipends that the awardee will distribute on behalf of the Navy to the interns participating in the programs. As a result, the actual value of the order is less than $2 million, according to the Navy.

The RFP provides that one of the tasks to be performed by the selected contractor is the preparation of “checks or electronic payments and relevant documents to distribute applicable . . . stipends to interns.” RFP at 6. The solicitation explains that the contractor will be issued funds for the stipends under a separate contract line item number (CLIN) in the task order, and that the CLIN will provide for reimbursement of the stipends only (i.e., no fee will be included). Id. The RFP’s price schedule, in turn, includes CLINs for stipend payments for the base and each of the four option years. Id. at 2. The solicitation includes the agency’s estimates of overall stipend payments for each year of performance, which range from $6 million in the base year to approximately $6.7 million in the final option period. Id. at 30. The RFP advises that no detailed justification is required if the offeror uses the exact government estimate stipend amounts in its proposal. Id.

In Qwest Gov’t Servs., Inc., B-404845, Mar. 25, 2011, 2011 CPD ¶ 77, we recognized that there are circumstances in which the successful contractor’s proposed price is not the sole determinant of the value of an order. See, e.g., U.S. Bank, B‑404169.3, Feb. 15, 2011, 2011 CPD ¶ 43 at 3-4; ESCO Marine, Inc., B‑401438, Sept. 4, 2009, 2009 CPD ¶ 234 at 5-6. We noted that in certain cases, the operative inquiry concerns the value of the goods or services being provided, and for which the contractor is, in fact, being compensated, under the order. Qwest Gov’t Servs., Inc., supra, at 3. In Qwest, the RFQ at issue provided for adding approximately $14 million to the evaluated prices of nonincumbent contractors to account for costs associated with transition of new government furnished equipment to a new location. The agency maintained that the transition costs should not be considered part of the value of the order because the government was not asking the contractor to incur, and would not be compensating the contractor for, these costs. We agreed, finding that because the transition costs did not reflect a value to be provided by the contractor under the order for which it would be compensated, the value of these costs could not be considered for the purpose of invoking our task order protest jurisdiction.

Application of the above principle to the facts of this case results in the conclusion that the value of the order is less than $10 million, and, as a consequence, that we lack jurisdiction over the protest. While, as pointed out by the protester, the RFP required offerors to include the stipend payment amounts in their price schedules, and the agency included these amounts in calculating the potential value of the order as announced in the on-line SeaPort Enhanced Task Order report, the fact remains that the stipend amounts do not reflect a value to be provided by the contractor under the order. Rather, as argued by the agency, the stipends are, in effect, “‘a pass through’ payment from the Navy to the student through the awardee.” Agency Request for Dismissal at 2. Because absent the inclusion of the stipend amounts, the value of the order to AESS is substantially less than $10 million, we lack jurisdiction over the protest.  (Karthik Consulting, LLC B-411496: May 26, 2015)  (pdf)


Protests filed with our Office in connection with the issuance or proposed issuance of a task or delivery order under a multiple-award contract are not authorized except where the order is valued over $10 million, or where the protester can show that the order increases the scope, period, or maximum value of the contract under which the order is issued. 10 U.S.C. § 2304c(e) (2012); Edmond Scientific Co., B‑410187.2, Dec. 1, 2014, 2014 CPD ¶ ___ at 2.

As an initial matter, for reasons unrelated to the dollar value of the task order at issue, the first issued raised by Serco--whether issuance of the bridge contract constituted a de facto override of the CICA stay--is not a matter for consideration by this forum. See 4 C.F.R. § 21.6 (2014) (“GAO does not administer the requirements to stay award or suspend contract performance under CICA”).

The second issue--whether the agency properly issued the task order on a sole source basis--does, however, turn on our $10 million jurisdictional threshold. In this regard, we conclude, notwithstanding the protester’s arguments to the contrary, that we have no basis to consider the value of the original order when determining the value of the bridge task order. Rather, for purposes of determining our jurisdiction, the value of the bridge task order on its face is controlling since the terms of the order define the scope and terms of the contractual commitment between the contractor and the government. See Goldbelt Glacier Health Servs., LLC, B‑410378, B-410378.2, Sept. 25, 2014 CPD ¶ 281 at 3 (actual dollar amount of order issued was appropriate measure of task order value). Accordingly, because the value of the bridge task order is less than $10 million, we lack jurisdiction to consider the protester’s challenge.

The protest is dismissed.  (Serco Inc., B-410676.2: Dec 12, 2014)  (pdf)


Protests filed with our Office in connection with the issuance or proposed issuance of a task or delivery order under a multiple-award contract are not authorized except where the order is valued over $10 million, or where the protester can show that the order increases the scope, period, or maximum value of the contract under which the order is issued. 10 U.S.C. § 2304c(e) (2012); see e.g., e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2, B-400585.3, Feb. 3, 2009, 2009 CPD ¶ 39 at 6.

At issue here is whether the value of the task order will be above or below the $10 million threshold for our jurisdiction. The [task order proposal request] TOPR, as amended, provides for evaluation of price and non-price factors, and states that the evaluated total price of a proposal will be “the total of all the priced line items for the base year and all options.” Agency Report (AR), Tab 14, TOPR amend. 3, at 21, 22. The independent government estimate (IGE), which the Army calculated by including estimates for the base year, three one-year options, and one ten-day transition option, values the order at approximately $[deleted] million. AR, Tab 3, IGE, at 3.

Edmond argues that the IGE does not accurately represent the value of the order, because the TOPR also included FAR clause 52.217-8, which reserves for the government a six-month option to extend services. Comments at 8. In this regard, the protester relies on the statement in the TOPR that the total evaluated price would include “all option periods,” and maintains that “all option periods” must include the option to extend. Comments at 9; AR, Tab 14, TOPR amend. 3, at 21, 22. Edmond contends that including the value of the option to extend in the IGE--which in the protester’s view, should be valued at half the value of the third option year--would increase the task order’s value above the $10 million threshold. Comments at 9, 10.

Edmond is mistaken. Our Office has determined that the value of a task order may include the value of options, including an option to extend services under FAR clause 52.217-8, when the value of the option (if exercised) is evident from the face of the solicitation. Serco Inc., B-406061, B-406061.2, Feb. 1, 2012, 2012 CPD ¶ 61 at 6-7. While the TOPR here required contractors to submit prices for the base period and option periods 1-4, it did not require submission of prices that would be used if the Army exercised its option to extend services under FAR clause 52.217-8, nor did it provide any formula for calculating these prices. In this regard, Edmond’s reliance on the TOPR’s statement that “the total evaluated price for orders would include all priced line items for the base year and all option periods” is misplaced, since the option-to-extend period here is not to be priced in proposals nor included in the evaluation of proposals.

In sum, the protester has not shown the agency’s IGE to be inconsistent with the terms of the TOPR or an inaccurate measure of the total value of the task order. Since that value is below $10 million, our Office does not have jurisdiction to consider the protest.  (Edmond Scientific Company, B-410187.2: Dec 1, 2014)  (pdf)


Our Office is authorized to hear protests of task orders that are issued under multiple-award contracts (or protests of the solicitations for those task orders) where the task order is valued in excess of $10 million, or where the protester asserts that the task order increases the scope, period, or maximum value of the contract under which the order is issued. California Indus. Facilities Res., Inc., d/b/a/ CAMSS Shelters, B-406146, Feb. 22, 2012, 2012 CPD ¶ 75 at 2. Our Office has held that the value of a task order may include the total anticipated funds to be recovered by the successful offeror. See Serco Inc., B-406061, B-406061.2, Feb. 1, 2012, 2012 CPD ¶ 61 at 7.

Here, the task order issued to NSI under its IDIQ contract has a maximum value below the $10 million floor necessary to invoke our bid protest jurisdiction. In this regard, the record reflects that the task order is comprised of four contract line item numbers (CLINs)--three fixed‑price CLINs (one of which is for optional transition-out work) and a single cost‑type CLIN for travel costs up to a maximum of $500,000. The agency issued the order to NSI on September 5 in the amount of $9,620,556.42 (including the optional transition work and assuming the maximum $500,000 for travel costs).

Glacier argues that the $10 million jurisdictional threshold is met here because, but for the agency’s flawed evaluation, it would have received an order under its IDIQ contract in an amount greater than $10 million. Throughout its protest, and in its submission addressing the jurisdictional question at issue, Glacier focuses on what it believes to be the true value of the work to be performed under the task order. Glacier contends that the work cannot be performed for an amount less than $10 million, where it, as the incumbent, proposed a price of $11,431,544. The protester maintains that we should invoke our jurisdiction since, as properly issued to Glacier, the order would have a value in excess of $10 million.

The Federal Acquisition Streamlining Act, as amended by the National Defense Authorization Act of Fiscal year 2012, specifically provides, in relevant part, that a protest is not authorized in connection with the issuance of a task or delivery order except for “a protest of an order valued in excess of $10,000,000.” 10 U.S.C. § 2304c(e)(1) (2006). Notwithstanding Glacier’s arguments to the contrary, where an order has in fact been issued by the government, we view the jurisdictional limit to turn on the value of the disputed order, which is reflected in the terms of the order itself since the order defines the scope and terms of the contractual commitment between the selected contractor and the government. Accordingly, we do not consider the alleged underlying value of the work apart from the terms of the disputed order, or the value of a theoretical order issued to a different contractor, as advocated by Glacier. Our view in this regard is consistent with the other decisions of this Office where we have considered the value of an order issued by the government. In each case, the focus of our inquiry has been on the total anticipated funds (or other economic value) to be received as compensation for the goods and services to be provided under the order as reflected in the contractual agreement between the government and contractor, not the value of the work separate and apart from the terms of the underlying contractual agreement, or the value of a different order issued to a different firm. See, e.g., Serco Inc., supra, (total evaluated price, to include option, appropriate measure of task order value because it reflects the amount that the contractor may be compensated in performing the task order); ESCO Marine, Inc., B-401438, Sept. 4, 2009, 2009 CPD ¶ 234 at 4-6 (holding value of task order for jurisdictional purposes to be the anticipated funds to be recovered by the contractor); U.S. Bank, B-404169.3, Feb. 15, 2011, 2011 CPD ¶ 43 at 3-4 (vendor’s total anticipated fee is value for determining jurisdiction).

In this case, there is no reasonable dispute that the challenged order, as issued by the government, has a maximum value less than $10 million. Accordingly, our Office does not have jurisdiction to consider the protest.  (Goldbelt Glacier Health Services, LLC, B-410378, B-410378.2: Sep 25, 2014)  (pdf)


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.

Kevcon argues that because the task order solicitation was issued prior to the reinstatement of the $10 million threshold by the FY 2012 NDAA, our Office has jurisdiction to hear this protest based on the analysis set forth in Technatomy. The protester’s reading of Technatomy is incorrect. In that case, we interpreted our jurisdiction to hear task or delivery order protests based on the filing date of the protest, rather than the date of the underlying procurement action. Technatomy Corp., supra, at 5-6.

In Standard Communications, Inc., B-406021, Jan. 24, 2012, 2012 CPD ¶ 51, we confirmed our view that the authority of this Office to hear a protest relates to the date when the protest was filed. Specifically, we held that although the enactment of the FY 2012 NDAA reinstated the $10 million threshold, we had jurisdiction to consider and issue a decision regarding a protest of a task order valued at less than $2 million because the protest had been filed before the enactment of the FY 2012 NDAA. Id. at 3.

Here, Kevcon’s protest was filed on February 13, 2012; on that date, the FY 2012 NDAA had taken effect. For this reason, our Office does not have jurisdiction to hear this protest because it concerns a task order valued at less than $10 million.  (Kevcon, Inc., B-406418, Mar 7, 2012)  (pdf)


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. See Pub. L. No. 98-369, 98 Stat. 1175 (1984) (codified at 31 U.S.C. sect. 3551 et seq. (2006)). Prior to 1994, the statutory authority of our Office under CICA did not distinguish between protests of contract awards and protests of task or delivery orders, as discussed more fully below.

In 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA), which, as relevant here, provided statutory guidance for the award of ID/IQ contracts. See Pub. L. No. 103-355, 108 Stat. 3243 (1994) (codified in Titles 10 and 41 of the U.S. Code). FASA also amended CICA by limiting the jurisdiction of our Office 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. FASA's bar on protests of orders applicable to ID/IQ contracts under Title 41 read as follows:

(e) Protests.--

A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.

Id. 108 Stat. at 3264 (codified at 41 U.S.C. sect. 253j (1994)). In other words, after 1994, 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, Congress modified FASA's bar on protests of task or delivery orders with the passage of the National Defense Authorization Act (NDAA). See Pub. L. No. 110‑181, 122 Stat. 3 (2008). As relevant here, the 2008 NDAA amended FASA (which in turn, had amended CICA) by "striking subsection (e)," and "inserting the following new subsection (e)":

(e) Protests.--

(1) 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) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.

Id. 122 Stat. at 237 (codified at 41 U.S.C. sect. 253j(e) (2006 & Supp. III 2009)).

The 2008 NDAA amendment, in essence, expanded the jurisdiction of our Office under FASA to include protests of task or delivery orders valued in excess of $10 million. 41 U.S.C. sect. 253j(e)(2). The NDAA also contained a sunset provision, which stated that the "subsection shall be in effect for three years." Id. sect. 253j(e)(3). The sunset took effect after May  27, 2011--4 days after this protest was filed.

In our view, the sunset provision in 41 U.S.C. sect. 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.

Our view of the sunset provision is based on the plain meaning of the text of the 2008 NDAA. The starting point of any analysis of the meaning of a statutory provision is the language used by Congress. International Program Grp., Inc., B-400278, B-400308, Sept. 19, 2008, 2008 CPD para. 172 at 4 (citing Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1990)). Where, as here, the language of a statute is clear on its face, its plain meaning will be given effect. Carcieri v. Salazar, 555 U.S. 379, 129 S. Ct. 1058, 1063-64 (2009); see also Mission Critical Solutions, B‑401057, May 4, 2009, 2009 CPD para. 93 at 3-8 (applying plain meaning of Small Business Act), recon. denied, Small Business Admin.-Recon., B-401057.2, July 6, 2009, 2009 CPD para. 148 at 5 (same).

Here, the plain meaning of the sunset provision unambiguously refers to the whole of subsection 253j(e). As discussed above, the 2008 NDAA struck the prior "subsection" added by FASA in its entirety and replaced it with "new subsection (e)." Pub. L. No. 110-181, 122 Stat. 3, 237 (2008). The revised subsection (e) stated that "[t]his subsection shall be in effect for three years." Id.; 41 U.S.C. sect. 253j(e)(3). Thus, upon operation of the sunset provision on May 27, 2011, the entire subsection, i.e., 41 U.S.C. sect. 253j(e), no longer has effect.

As a result of the sunset of 41 U.S.C. sect. 253j(e), the jurisdiction of our Office over protests of task or delivery orders has, effectively, reverted to the jurisdiction we had under CICA, prior to its amendment by FASA. As mentioned above, prior to FASA, our Office'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, our Office 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.[4] See, e.g., Astronautics Corp. of Am., B-242782, June 5, 1991, 91-1 CPD para. 531 (challenge to scope of task order issued under a multiple-award ID/IQ contract); Computer Scis. Corp., B-213287, Aug. 6, 1984, 84‑2 CPD para. 151 (non-scope challenge to competitive task order issued under ID/IQ contract); Nautica Int'l Inc., B-254428, Dec. 15, 1993, 93-2 CPD para. 321 (non-scope challenge to order issued under the Federal Supply Schedule); Integrated Sys. Grp., Inc., B-246447, Mar. 9, 1992, 92-1 CPD para. 268 (same); Diversified Comp. Consultants, Inc., B-241764, Feb. 27, 1991, 91-1 CPD para. 224 (same); AZTEK, Inc., B-236612, Dec. 6, 1989, 89-2 CPD para. 521 (same).

In sum, 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. For this reason, we conclude that we have jurisdiction over the task order protest here.

Effective Date of the Sunset Provision

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.

As noted above, 41 U.S.C. sect. 253j(e)(1), added to CICA by FASA and amended by the 2008 NDAA, stated that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except" for the identified exceptions. (Emphasis added.) CICA defines a "protest" as a "written objection by an interested party" to a solicitation, or the award or proposed award of a contract. 31 U.S.C. sect. 3551 (2006). CICA further states that "[a] protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General if filed in accordance with this subchapter." Id. sect. 3552(a). That is, CICA's definitions of "protest" are based on the filing of a written objection. Thus, reading the 2008 NDAA amendment to CICA in conjunction with CICA's protest definition, we think that the prohibition of protests in the 2008 NDAA, which states that "[a] protest is not authorized," can only be reasonably interpreted as meaning a protest may not be filed.

Moreover, a conclusion that the sunset provision applies to protests filed prior to the sunset date would require us to give retroactive effect to the sunset provision. In the absence of statutory direction, however, retroactivity is not favored by the law. KPMG Peat Marwick, LLP--Costs, B-259479, July 25, 1996, 96-2 CPD para. 43 at 4 (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988); OAO Corp. v. Johnson, 49 F.3d 721 (Fed. Cir. 1995)). Thus, in the absence of such an express statement, we do not view the sunset provision as applying to pending protests even assuming arguendo that the sunset terminates GAO's jurisdiction.

In sum, we conclude that our Office has jurisdiction to complete our review of protests concerning the issuance of task orders that were filed prior to May 27, 2011, including the order challenged here by Technatomy.  (Technatomy Corporation, B-405130, June 14, 2011) (pdf)


LaBarge argues that our Office has jurisdiction to hear this protest because the delivery order issued to DRS is outside the scope of the underlying indefinite-delivery/indefinite-quantity (ID/IQ) contract. The protester points to the solicitation for the underlying ID/IQ contract for fuel and water pump assemblies, solicitation No. W56HZV-09-R-0461, and argues that the solicitation did not notify protesters that the pump assemblies would be used in connection with the Assault Hoseline System; the protester argues that this system imposes additional requirements for the parts, and contends that these additional requirements are not found in the underlying ID/IQ contract. LaBarge requests that our Office recommend that the agency terminate DRS's order, and issue the order to LaBarge, since LaBarge is, in its view, the only supplier of pumps that meet the agency's requirements. Protest at 6.

When a protester alleges that an order is outside the scope of the contract, we analyze the protest in essentially the same manner as those in which the protester argues that a contract modification is outside the scope of the underlying contract. The fundamental issue is whether issuance of the task or delivery order, in effect, circumvents the general statutory requirement under the Competition in Contracting Act of 1984 (CICA) that agencies "obtain full and open competition through the use of competitive procedures" when procuring their requirements. See 10 U.S.C. sect. 2304(a)(1)(A) (2000); see Anteon Corp., B‑293523, B-293523.2, Mar. 29, 2004, 2004 CPD para. 51 at 4-5. In determining whether a task or delivery order (or modification) is outside the scope of the underlying contract, and thus falls within CICA's competition requirement, our Office examines whether the order is materially different from the original contract. See Specialty Marine, Inc., B-293871, B-293871.2, June 17, 2004, 2004 CPD para. 130 at 4.

Although LaBarge cites our decision in Specialty Marine in support of its arguments that its protest here concerns a matter of scope, the protester fails to recognize that our concern in scope cases is not for aggrieved competitors for the issuance of an order (that is, current holders of an ID/IQ contract under which the orders were issued). Rather, our concern was whether the issuance of an order would circumvent the competition requirements of CICA and deprive other entities--that did not compete for and receive one of the underlying contracts--of an opportunity to compete for what was, in essence, a new procurement. See, e.g., LBM, Inc., B‑290682, Sept. 18, 2002, 2002 CPD para. 157 at 5-7.

In contrast, LaBarge is concerned with whether the agency has properly issued a delivery order to DRS, rather than LaBarge. Thus, although LaBarge has framed its arguments as raising a question about the scope of the contract, the crux of its protest concerns the agency's evaluation of the competing quotes. Because the value of the delivery order is below $10 million, we do not have authority to review the issuance of this order.  (LaBarge Products, Inc., B-402280, January 19, 2010)  (pdf)


This protest involves the issuance of a task order. Our jurisdiction to consider protests of orders issued under task or delivery order contracts is limited to protests where the order is valued over $10 million, or where the protester can show that the order exceeds the scope, term, or maximum value of the task or delivery order contract. 41 U.S.C.A sections 253j(e), (g), 253k(1) (West 2009); e.g., e‑Management Consultants, Inc.; Centech Group, Inc., B‑400585.2, B-400585.3, Feb. 3, 2009, 2009 CPD para. 39 at 6; see also Armorworks Enters., LLC, B-401671.3, Nov. 6, 2009, 2009 CPD para. 225 at 3 (protest dismissed where agency issued orders valued under $10 million under a delivery order contract).

In reviewing the agency report, our Office noted that the task order at issue had been issued under the terms of another contract vehicle, the FERM BPA, and the task order itself was clearly valued under $10 million. Since the agency report did not contain a copy of a FERM BPA, and the terminology used in the agency report was not precise, we asked the Forest Service to provide additional documentation about the FERM BPA, and invited both parties to submit additional briefs. Based on information produced by the Forest Service, the relevant facts regarding our jurisdiction follow.

The FERM BPAs were established pursuant to request for quotations (RFQ) No. AG‑04N0‑S‑09‑0004, which was issued by the Forest Service on May 6, 2009. The FERM RFQ requested quotations to provide 13 types of forest engineering and road maintenance services, including stream restoration and rehabilitation services, across 11 geographic areas in Oregon. FERM RFQ at 2. In addition to providing a price quotation for the relevant line items, the FERM RFQ instructed vendors to submit a technical statement, a "benefit to local community" statement, and past performance information. FERM RFQ at 53-55.

The FERM RFQ emphasized that the procurement was expected to conclude with the establishment of multiple BPAs, and expressly stated that no contracts would be awarded. FERM RFQ at 15. Consistent with this approach, the FERM RFQ did not include a guaranteed minimum quantity, although the RFQ did specify an annual ceiling amount of $1 million per vendor.

After the Forest Service evaluated quotations from numerous vendors, including both Aquatic and C&B, the agency established FERM BPAs with 43 vendors. The BPAs established with Aquatic and C&B included the services relevant here: stream restoration and rehabilitation services within Area 1.

In response to our inquiry, the Forest Service now argues that our Office does not have jurisdiction to consider this protest because the FERM BPA is functionally equivalent to a task order contract, and the value of the task order is less than $10 million. We disagree.

In order for the task order protest bar to apply, there must be a task or delivery order contract pursuant to which the order is being placed. A task order contract for purposes of 41 U.S.C. sect. 253j--the section that sets forth the limitation of our jurisdiction to hear protests challenging the issuance of task or delivery orders under such contracts--is defined as

a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.

41 U.S.C. sect. 253k(1) (2006).

To be an enforceable contract, an indefinite-delivery/indefinite-quantity task or delivery order contract must require the government to order, and the contractor to furnish, at least a stated minimum quantity of supplies or services. Federal Acquisition Regulation (FAR) sect. 16.504(a)(1). Additionally, to ensure that the contract is binding, the minimum quantity must be more than a nominal quantity, but should not exceed the amount that the government is fairly certain to order. FAR sect. 16.504(a)(2). Information Ventures, Inc., B-299255, Mar. 19, 2007, 2007 CPD para. 80 at 6.

In contrast, a BPA is generally not a contract, and a BPA does not obligate the agency to enter into future contracts with the vendor. FAR sect. 13.303-1(a); see also Logan, LLC, B-294974.6, Dec. 1, 2006, 2006 CPD para. 188 at 2-3 n.2. Here there is no underlying task order contract; the task order is being placed under a BPA.

Since GAO's jurisdiction at 41 U.S.C. sect. 253j(e) to consider protests of task orders is limited with respect to task orders under task or delivery order contracts, and since a BPA is not a contract, we have no basis to dismiss C&B's challenge for lack of jurisdiction. See, e.g., Envirosolve LLC, B‑294974.4, June 8, 2005, 2005 CPD para. 106 at 7-8 (sustaining protest against orders placed under multiple-award BPAs where orders were valued under $100,000).  (C&B Construction, Inc., B-401988.2, January 6, 2010) (pdf)


As a preliminary matter, the Navy argues that we should dismiss ESCO’s protest for lack of jurisdiction because the task order issued to ISL is in the amount of $.06 and our jurisdiction to review task order protests is limited to those valued in excess of $10 million (except under certain limited circumstances not applicable here). ESCO disagrees, arguing that our Office has jurisdiction because the value of the task order should include consideration of the ship scrap values, which both offerors estimated to be in excess of $13 million and which offerors were required to factor into their proposed prices.

The Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, sect. 1004, 108 Stat. 3243, 3252-53 (1994), codified at 10 U.S.C. sect. 2304(c) (2006), provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” However, section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA), Pub. L. No. 110-181, 122 Stat. 3, 236-39 (2008) (to be codified at 10 U.S.C. sect. 2304c(e)) modified FASA’s prior limitations on task order protests. Specifically, the NDAA provides that, in addition to previously permitted task order protests, a protest is also authorized with regard to “an order valued in excess of $10,000,000.” 122 Stat. 237 (to be codified at 10 U.S.C. sect. 2304c(e)(1)).

Here, the protester does not allege that the task order will exceed the scope, period, or maximum value of the underlying ID/IQ contract. Nor is there any dispute that offerors’ proposed prices for the task order are less than $10 million, while the sum of each offeror’s price and estimated scrap value was, in both instances, in excess of $10 million. Rather, the determination of GAO’s jurisdiction turns on the meaning of the term “valued” as used in the NDAA.

In matters concerning the interpretation of a statute, the first question is whether the statutory language provides an unambiguous expression of the intent of Congress. If it does, then the matter ends there, for the unambiguous intent of Congress must be given full effect. Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992) (when the words of a statute are unambiguous, the judicial inquiry is complete); Robinson v. Shell Oil Co., 519 U.S. 337, 340-41 (1997) (when the statutory language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case, the judicial inquiry must cease). It is a fundamental canon of statutory construction that words, unless otherwise defined by the statute, will be interpreted consistent with their ordinary, contemporary, common meaning. State of California v. Montrose Chem. Corp., 104 F.3d 1507, 1519 (9th Cir. 1997); GAO, Principles of Federal Appropriations Law, vol. 1, at 2-89 (3d ed. 2004); see Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 301 (1989).

The NDAA provision at issue here extends GAO’s jurisdiction to protests involving the issuance of task orders of a certain size--those “valued” in excess of $10 million. However, neither the language of the statute nor the legislative history of the NDAA defines the term “valued.” Without specific definitions to guide our review, we look to the plain meaning of the word used in the statute.

The ordinary and commonly understood meaning of the term “value” is “a fair return or equivalent in goods, services, or money for something exchanged,” Merriam-Webster’s Dictionary (http://www.merriam-webster.com/dictionary/value), or “an amount, as of goods, services, or money, considered to be a fair and suitable equivalent for something else.” The American Heritage Dictionary of the English Language (4th ed. 2004). As explained below, while an order’s “value” often may be synonymous with its price, under the procurement scheme here, we think it is proper to take into account the estimated scrap values when determining the “value” of the task order in question.

As set forth above, the provisions of the underlying ID/IQ contracts require the contractor to sell or dispose of any scrap or reusable equipment/material removed from the ship as part of the dismantling efforts. Further, the contractor was to retain the proceeds of the scrap sales. Accordingly, the contractors were required to factor estimated proceeds from scrap sales into their task order prices for towing and dismantling services. Specifically, the contracts state that “[t]he contractor shall use the [scrap] sale proceeds to offset the price or cost of work covered by this contract,” and that “[t]he Contractor shall retain proceeds from the sale of scrap and reusable equipment/material from the vessel being dismantled . . . and shall apply them to the cost of performance of the contract.” AR, Tab 1, ISL Contract, sections B, C.4.2; Tab 2, ESCO Contract, sections B, C.4.2.

The terms and procedures of the ID/IQ contracts here implement the provisions of 10 U.S.C. sect. 7305a, Vessels stricken from Naval Vessel Register: contracts for dismantling on net-cost basis, which states:

(a) Authority for net-cost basis contracts. When the Secretary of the Navy awards a contract for the dismantling of a vessel stricken from the Naval Vessel Register, the Secretary may award the contract on a net-cost basis.

(b) Retention by contractor of proceeds of sale of scrap and reusable items. When the Secretary awards a contract on a net-cost basis under subsection (a), the Secretary shall provide in the contract that the contractor may retain the proceeds from the sale of scrap and reusable items removed from the vessel dismantled under the contract.

(c) Definitions. In this section:

(1) The term “net-cost basis”, with respect to a contract for the dismantling of a vessel, means that the amount to be paid to the contractor under the contract for dismantling and for removal and disposal of hazardous waste material is discounted by the offeror’s estimate of the value of scrap and reusable items that the contractor will remove from the vessel during performance of the contract. . . .

10 U.S.C. sect. 7305a.

The ID/IQ contracts awarded to both ISL and ESCO also contain Federal Acquisition Regulation (FAR) clause sect. 52.245-2, Government Property (Fixed-Price Contracts) (May 2004), which states in relevant part that “[t]he contractor shall credit the net proceeds from the disposal of Government property to the price or cost of work covered by this contract or to the Government as the Contracting Officer directs.” FAR sect. 52.245-2(i)(9).

The task order issued here essentially provides the contractor with two different forms of payment for the towing and dismantling services being supplied to the Navy: 1) payment in appropriated funds (i.e., the price); and 2) payment-in-kind (i.e., the right to keep the scrap sale proceeds). As evidenced by their proposals, both ESCO and ISL valued the payment-in-kind at more than $13 million. In fact, the only reason the Navy received the prices that it did from ISL and ESCO was because of the additional $13 million in payments-in-kind that the contractor would receive as part of the task order. Under the payment scheme contemplated by the applicable statute and the ID/IQ contracts themselves, we think that the price of the task order does not represent the task order’s entire value, and that consideration of the estimated scrap value is also necessary to determine the task order’s value.

As the “value” of the task order here, as measured by sum of ISL’s price and estimated scrap value proceeds, is in excess of $10 million, we conclude that we have jurisdiction to review ESCO’s protest of the task order issued to ISL.  (ESCO Marine, Inc., B-401438, September 4, 2009)  (pdf)


On September 9, Armorworks, one of the ID/IQ contract holders, protested the terms of the RFQs, arguing that it was improper to split the requirement for the plates into three separate RFQs by size. According to Armorworks, no body armor requirement has ever been divided this way in the past. Rather, Armorworks asserts, SAPI plates are always ordered in combined groups of small, medium, and large, so that when they are delivered to the users, there is no risk that soldiers of one particular size--small, medium, or large--will be left without protection. In addition, Armorworks maintains that the agency should have "set these procurements aside for small business, in whole or in part." Protest at 2.

The agency responded by asserting that our Office does not have jurisdiction over the protest challenging the RFQs because each RFQ concerns the award of a separate delivery order with an estimated value of less than $10 million, the statutory threshold for our Office's task and delivery order protest jurisdiction. We agree.

This Office's authority to consider task and delivery order protests was recently expanded by section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA). In this regard, the NDAA authorizes this Office to consider protests filed in connection with task orders that are valued in excess of $10 million. Pub. L. No. 110-181, 122 Stat. 3, 239 (2008).

There is no dispute that each of the contemplated delivery orders is valued at less than $10 million. Rather, Armorworks argues that our Office should consider the RFQs as reflecting a single requirement with a combined value of $21 million. In this regard, Armorworks contends that the agency's decision to divide the plates into three separate delivery orders was essentially a pretext, designed to avoid the $10 million threshold and thereby avoid the protest jurisdiction of our Office. Armorworks reaches this conclusion based on the fact that dividing the orders by plate size is allegedly without precedent, coupled with its belief that such a division is "irrationally dangerous to troops and morale." Protester's Response to Agency's Memorandum, at 4.

Fundamentally, Armorworks' pretext argument is premised on the notion that the agency's decision to separately procure the plates by size was made in bad faith. Government officials are presumed to act in good faith, Logistics Solutions Group, Inc., B-294604.7, B-294604.8, July 28, 2005, 2005 CPD para. 141 at 4, and we will not aggregate separate task or delivery orders in connection with a multiple-award ID/IQ contract, for the purpose of establishing the $10 million jurisdictional threshold, absent a clear showing that the agency's decision to issue separate orders was made solely to evade our protest jurisdiction.

Here, the record does not support a finding that the agency's decision to separately order its plates by size was a pretext as Armorworks suggests. Rather, the agency has explained that it divided the requirements into three separate orders according to size based on its understanding that contractors' SAPI production lines are established for a particular size; issuing separate delivery orders for the SAPIs by size, the agency reasoned, would allow prospective contractors to focus on making only one size. This in turn would encourage more contractors to compete and thereby help ensure that all of the urgently needed items would be provided within the short 90-day timeframe for delivery. Agency Memorandum, Sept. 10, 2009. Given the agency's rationale for separating the orders by plate size, we have no basis to conclude that the agency's decision to issue three separate task orders was a pretext, that is, a deliberate effort to evade our protest jurisdiction. Accordingly, because each RFQ is for a delivery order which is valued at less than $10 million, our Office does not have jurisdiction to hear Armorworks' protest of the RFQs.  (Armorworks Enterprises, LLC, B-401671.3,November 6, 2009) (pdf)


As a preliminary matter, the agency asserts that this Office is not authorized to consider the issues raised in the protests due to the limitations of the Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. sect. 2304c (2006).[12] However, as discussed below, this Office's consideration of the protest issues is authorized by the recent enactment of section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 236-39 (2008), which modified FASA's prior limitations on task order protests. Specifically, the NDAA provides that protests of task order awards are not authorized "except for . . . a protest of an order valued in excess of $10,000,000." 122 Stat. 237.

The agency acknowledges that the NDAA not only modified FASA's prior limitations on protests, but further, in order to meet the "fair opportunity to be considered" requirements, the NDAA requires that, for orders in excess of $5,000,000, procuring agencies must, among other things: (1) provide potential competitors with a clear statement of the agency's requirements; (2) disclose the significant factors and subfactors, along with their relative importance, that the agency expects to consider; and (3) provide a written statement documenting the basis for the task order award where, as here, award is to be made on a "best value" basis. Id. The agency further acknowledges that the NDAA authorizes protests challenging an agency's failure to comply with these "fair opportunity to be considered" requirements. Army's Legal Memorandum (DTA 2) at 9.

Nevertheless, the agency maintains that GAO is only permitted to review whether the "process" for issuing task orders is followed--that is, whether solicitations identify the agency's requirements, whether solicitations contain evaluation criteria, and whether best value award decisions are documented; GAO is not permitted to review the agency's "judgments" or otherwise review the reasonableness of the agency's evaluation and award decision. Army's Legal Memorandum (DTA 2) at 4. Thus, the agency asserts that although the NDAA's provisions permit a protester to challenge an agency's failure to inform offerors regarding the ground rules under which a task order competition will be conducted, it does not authorize a protest that challenges the agency's failure to actually follow those rules.

We reject the agency's arguments. Initially, as noted above, the NDAA authorizes "a protest of an order valued in excess of $10,000,000." 12 Stat. 237. The Competition in Contracting Act of 1984 (CICA), as modified by FASA, specifically defines the term "protest," as follows:

The term "protest" means a written objection by an interested party to any of the following:

(A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.

(B) The cancellation of such a solicitation or other request.

(C) An award or proposed award of such a contract.

(D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
31 U.S.C. sect. 3551(1) (2000).

In the context of CICA and FASA, and our Office's well-established practices and procedures employed to implement the protest jurisdiction conferred by those statutes, we view the NDAA's authorization to consider "a protest of an order valued in excess of $10,000,000" as providing the same substantive protest jurisdiction conferred by those statutes. In this regard, we find no basis to conclude that, in enacting the NDAA and authorizing certain task order protests, Congress intended to establish a system under which an agency is obligated to advise offerors of the bases for task order competition, and enforces that requirement through authorization of bid protests, but which provides no similar enforcement authority to ensure that agencies actually act in accordance with the guidance they are required to provide to offerors. Rather, consistent with this Office's past practice and CICA's provisions that define a protest as an "objection . . . to . . . an award or proposed award," we view the NDAA's authorization to consider protests of task orders in excess of $10,000,000 as extending to protests asserting that an agency's award decision failed to reasonably reflect the ground rules established for the task order competition. Accordingly, our review of the protests here includes our assessment of whether the agency's source selection decisions were reasonably consistent with the terms of the solicitation and applicable procurement laws and regulations. Triple Canopy, Inc., B-310566.4, Oct. 30, 2008, 2008 CPD para. __ at 5-7.  (Bay Area Travel, Inc.; Cruise Ventures, Inc.; Tzell-AirTrak Travel, B-400442; B-400442.2; B-400442.3; B-400547; B-400547.2; B-400547.3; B‑400564; B-400564.2; B-400564.3, November 5, 2008) (pdf)


Next, with regard to Centech's protest challenging the agency's interim issuance of a task order to Bowhead, this Office is not authorized to consider the matter. Specifically, the Federal Acquisition Streamlining Act of 1994 (FASA) provides that this Office is authorized to consider task order protests only under limited circumstances, stating:

A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.

41 U.S.C. sect. 253j(d) (2008).

This Office's authority to consider task order protests was recently expanded by section 843 of the National Defense Authorization Act of Fiscal Year 2008 (NDAA). In this regard, the NDAA authorizes this Office, in addition to the circumstances identified above, to consider protests filed in connection with task orders that are valued in excess of $10 million. Pub. L. 110-181, 122 Stat. 3, 239 (2008).

Here, Centech's protest does not allege that the task order issued to Bowhead increased the scope, period, or maximum value of the contract against which the order was issued. Further, the record is undisputed that the value of the task order is less than $10 million. Accordingly, pursuant to the statutory limitations discussed above, this Office is not authorized to consider Centech's protest challenging the agency's issuance of an interim task order to Bowhead.  (
e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009)  (pdf)


As a preliminary matter, the agency asserts that this Office is not authorized to consider the issues raised in Triple Canopy’s protest due to the protest limitations previously imposed by the Federal Acquisition Streamlining Act of 1994 (FASA), 10 U.S.C. § 2304(c)(2000). As discussed below, this Office’s consideration of the various issues raised by Triple Canopy is authorized by section 843 of the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. 110-181, 122 Stat. 3, 236-39 (2008), which modified the prior FASA limitations regarding permissible protests. Specifically, the NDAA provides that, in addition to previously permitted task order protests, a protest is authorized with regard to “an order valued in excess of $10,000,000.” 122 Stat. 237.

The agency acknowledges that the NDAA not only modifies FASA’s prior limitations on protests, but further, in order to meet the “fair opportunity to be considered” requirements, the NDAA requires that, for orders in excess of $5,000,000, procuring agencies must provide ID/IQ contract holders with specific information regarding the bases for pending task order competitions. The agency further acknowledges that the NDAA authorizes protests challenging an agency’s failure to comply with these “fair opportunity to be considered” requirements. Agency Legal Memorandum, Sept. 2, 2008, at 12.

Nonetheless, the agency maintains that, while task order contractors are “entitled to receive the information [regarding the bases for competitions],” and may protest the agency’s failure to provide such information, contractors are “not entitle[d] . . . to challenge the merits of the award determination.” Id. at 14. That is, the agency asserts that while the NDAA’s provisions permit a protester to challenge an agency’s failure to inform offerors regarding the ground rules under which a task order competition will be conducted--it does not authorize a protest that challenges the agency’s failure to actually follow those rules.  (Triple Canopy, Inc., B-310566.4, October 30, 2008) (pdf)

We reject the agency’s arguments. Initially, as noted above, the NDAA authorizes “a protest of an order valued in excess of $10,000,000.” 122 Stat. 237. The Competition in Contracting Act of 1984 (CICA), as modified by FASA, specifically defines the term “protest,” stating:

The term “protest” means a written objection by an interested party to any of
the following:

(A) A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.
(B) The cancellation of such a solicitation or other request.
(C) An award or proposed award of such a contract.
(D) A termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

31 U.S.C. § 3551(1)(2000).

In the context of CICA and FASA, along with this Office’s well-established practices and procedures employed to implement the protest jurisdiction conferred by those statutes, we view the NDAA’s authorization to consider “a protest of an order valued in excess of $10,000,000” as providing the same substantive protest jurisdiction conferred by those statutes. In this regard, we find no basis to conclude that, in enacting the NDAA and authorizing certain task order protests, Congress intended to establish a system that requires agencies to advise offerors of the bases for task order competitions, and enforces that requirement through authorization of bid protests--but provides no similar enforcement authority to ensure that agencies actually act in accordance with the guidance they are required to provide to offerors. Rather, consistent with this Office’s past practice, and CICA’s provisions that define a protest as an “objection . . . to . . . an award or proposed award,” we view the NDAA’s authorization to consider protests of task orders in excess of $10 million as extending to protests asserting that an agency’s award decision failed to reasonably reflect the ground rules established for the task order competition. Accordingly, our review of Triple Canopy’s protest includes consideration of whether the agency’s source selection decision was reasonably consistent with the terms of the underlying solicitation and applicable procurement laws and regulations.  (Triple Canopy, Inc., B-310566.4, October 30, 2008)  (pdf)


GCE’s protest raises various challenges to the Coast Guard’s decision to modify the SETS II task order to include federal financial IT support services. The protester principally argues that the services are beyond the scope of the SETS II task order and should have been separately and competitively procured. In support of its position, the protester argues that the federal financial IT support services are materially different from those in the statement of work in the original SETS II task order. Importantly, GCE does not argue that the task order modifications here are beyond the scope of the ITOP II ID/IQ contract. GCE also protests that the agency’s decision to modify QSS’s SETS II task order violated the Small Business Act by improperly bundling work requirements that had previously been performed by separate small business concerns. Protest, Nov. 16, 2007, at 11-13; Protest, Jan. 9, 2008, at 2, 29-30. For the reasons set forth below, we conclude that we do not have jurisdiction to consider GCE’s challenges and, therefore, we dismiss the protest. Our Office is generally precluded from considering protests challenging the issuance of task or delivery orders under ID/IQ contracts. In this regard, the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, sect. 1004, 108 Stat. 3243, 3252-53 (1994), codified at 41 U.S.C. sect. 253j(d) (2000), provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” Here, GCE does not allege that the modifications issued by the Coast Guard adding federal financial IT support services increase the scope, period, or maximum value of the ITOP II ID/IQ contract; rather, the protester asserts only that the modifications at issue are outside the scope of the SETS II task order. Accordingly, as GCE’s protest here does not fit within the exceptions provided in the statute, we lack jurisdiction to review the matter. See Cartographics, LLC, B-297121, Nov. 15, 2005, 2005 CPD para. 207 at 2; United Info. Sys., Inc., B-282895, B-282896, June 22, 1999, 99-1 CPD para. 115 at 1-2. GCE does not dispute that its protest is premised on the assertion that the modifications regarding federal financial IT support services are beyond the scope of the SETS II task order. Instead, the protester argues that consideration of its protest here is not statutorily precluded. Specifically, GCE argues that the express language of FASA refers to and prohibits two types of protests: 1) those involving the proposed issuance of task and delivery orders; and 2) those involving the issuance of original task and delivery orders. GCE Comments, Jan. 18, 2008, at 5 (emphasis added). By contrast, the modification of an existing task order, GCE maintains, involves neither the issuance nor the proposed issuance of a task order and is, therefore, not barred from protest. GCE argues that Congress did not intend the FASA bar on protests to encompass task order modifications: the statute does not mention task order modifications, and if Congress had intended the statute to apply as well to task order modifications, it would have added specific language to this effect. Id.

We recognize that the FASA protest bar does not expressly address the issue of modifications of task and delivery orders issued under ID/IQ contracts. We think, however, that the restriction on protests of orders placed under a task order contract as contained in 41 U.S.C. sect. 253j(d) also applies here. Congress passed FASA as part of an effort to reform federal procurement activities “by greatly streamlining and simplifying [the federal government’s] buying practices.” 140 Cong. Rec. H9240, H9240 (1994) (statement of Rep. Conyers). Bid protests were one area targeted by FASA for reform. In particular, FASA established that, when agencies utilize ID/IQ contracts--with a statutory preference for the use of multiple-award ID/IQ contracts, thereby creating a competitive pool of contractors for individual work projects--the issuance of individual task and delivery orders to these contractors would not be subject to protests. The intent of Congress “was to [generally] exempt from protest the issuance of individual task orders to contractors who had already received awards, subject to protest, of their master ID/IQ contracts.” A & D Fire Protection Inc. v. U.S., 72 Fed. Cl. 126, 134 (2006). The protester essentially argues that although protests regarding an agency’s issuance of task orders under ID/IQ contracts are precluded, protests regarding an agency’s modification of such task orders are permitted. We find this position to be inconsistent with both the language of FASA and the underlying congressional intent. Moreover, we see no logic in holding that an agency’s decision to modify an existing task order could be subject to protest when it is clear that an agency’s decision to perform the very same action by means of a new task order would not be subject to protest; that is, had the Coast Guard issued a separate task order to QSS for federal financial IT support services rather than modifying the existing SETS II task order, it is undisputed that this action would not be subject to protest. In our view, accepting GCE’s position--which would permit protests regarding task order modifications but not the task orders themselves--would elevate form over substance. In sum, we conclude that FASA’s bar on protests in connection with the issuance or proposed issuance of task orders encompasses protests concerning the issuance or proposed issuance of task order modifications.  (Global Computer Enterprises, Inc., B-310823; B-310823.2; B-310823.4, January 31, 2008) (pdf)


Where a solicitation for an ID/IQ contract contemplates only a single competitive source selection for specific items, based on the proposals submitted in response to the RFP, and is not for work to be assigned based on further competitions among the awardees, we have found that 10 U.S.C. § 2304c(d) does not preclude our bid protest jurisdiction by virtue of the implementation of these source selections by the issuance of task or delivery orders.  Teledyne-Commodore, LLC--Recon., B‑278408.4, Nov. 23, 1998, 98-2 CPD ¶ 121 at 3-4; Electro-Voice, Inc., B-278319, B-278319.2, Jan. 15, 1998, 98-1 CPD ¶ 23 at 5.  As discussed in detail below, that is precisely the situation here, where the RFP contemplated that awards for the CLINs for existing INMARSAT services would be based on the proposals, including the pricing, submitted in response to the RFP and would not be based on further competitions among the awardees of the ID/IQ contracts under this RFP.  (Global Communications Solutions, Inc., B-291113, November 15, 2002)


We agree with LBM that the limitation on our bid protest jurisdiction in 10 U.S.C. S: 2304c(d) does not apply here. Contrary to the Army's arguments, LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS, without regard to the Federal Acquisition Regulation (FAR) S: 19.502-2(b) requirements pertaining to small business set-asides. This is a challenge to the terms of the underlying LOGJAMSS solicitation and is within our bid protest jurisdiction. See N&N Travel & Tours, Inc. et al., B-285164.2, B-285164.3, Aug. 31, 2000, 2000 CPD P: 146 at 6. In our view, the limitation on our bid protest jurisdiction was not intended to, and does not, preclude protests that timely challenge the transfer and inclusion of work in ID/IQ contracts without complying with applicable laws or regulations, but was to preclude protests in connection with the actual or proposed issuance of an individual task or delivery orders under those contracts. This view is consistent with the legislative history to this particular section, which was enacted in the Federal Acquisition Streamlining Act of 1994 (FASA), Pub. L. No. 103-355, 108 Stat. 3243, 3253.  (LBM, Inc., B-290682, September 18, 2002)  (pdf)


Protest that contracting agency improperly proposes to issue a task order under an indefinite-delivery/indefinite-quantity contract is dismissed pursuant to 10 U.S.C. sect. 2304c(d) (1994), which provides that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued," where the enumerated exceptions do not apply.  (Hospital Klean, Inc., B-286791, December 8, 2000)


Protests alleging that contracting agency improperly evaluated protester's proposals submitted in response to solicitations issued pursuant to indefinite-quantity, indefinite-delivery contract are dismissed pursuant to 41 U.S.C. sect. 253j(d) (1994), which provides that "[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued," where the enumerated exceptions do not apply.  (United Information Systems, Inc., B-282895; B-282896, June 22, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
New Analytic Strategies LLC; Gemini Industries, Inc. B-413758.2, B-413758.3: Nov 28, 2016 C&B Construction, Inc., B-401988.2, January 6, 2010 (pdf)
Ryan Consulting Group, Inc. B-414014: Nov 7, 2016 ESCO Marine, Inc., B-401438, September 4, 2009  (pdf)
Karthik Consulting, LLC B-411496: May 26, 2015  (pdf) LBM, Inc., B-290682, September 18, 2002  (pdf)
Serco Inc., B-410676.2: Dec 12, 2014  (pdf) Global Communications Solutions, Inc., B-291113, November 15, 2002
Edmond Scientific Company, B-410187.2: Dec 1, 2014  (pdf)  
Goldbelt Glacier Health Services, LLC, B-410378, B-410378.2: Sep 25, 2014  (pdf)  
Kevcon, Inc., B-406418, Mar 7, 2012  (pdf)  
Technatomy Corporation, B-405130, June 14, 2011 (pdf)  
LaBarge Products, Inc., B-402280, January 19, 2010 (pdf)  
Armorworks Enterprises, LLC, B-401671.3,November 6, 2009 (pdf)  
Bay Area Travel, Inc.; Cruise Ventures, Inc.; Tzell-AirTrak Travel, B-400442; B-400442.2; B-400442.3; B-400547; B-400547.2; B-400547.3; B‑400564; B-400564.2; B-400564.3, November 5, 2008 (pdf)  
e-Management Consultants, Inc.; Centech Group, Inc., B-400585.2; B-400585.3, February 3, 2009 (pdf)  
Triple Canopy, Inc., B-310566.4, October 30, 2008  (pdf)  
Global Computer Enterprises, Inc., B-310823; B-310823.2; B-310823.4, January 31, 2008 (pdf)  
Hospital Klean, Inc., B-286791, December 8, 2000  (PDF Version)  
Corel Corporation, B-283862, November 18, 1999  (PDF Version)  
United Information Systems, Inc., B-282895; B-282896, June 22, 1999  (PDF Version)  

U. S. Court of Federal Claims - Key Excerpts

D. Whether The Federal Acquisition Streamlining Act [FASA] Precludes The Court From Adjudicating Plaintiff’s Bid Protest.

1. The Government’s Argument.

The Government argues that the court does not have jurisdiction to adjudicate Plaintiff’s claim, “because this protest ‘is in connection with’ the cancellation of an RFQ for a proposed delivery[.]” Gov’t Mot. at 6–7 (citing 10 U.S.C. § 2304c(e); SRA Int’l, 766 F.3d at 1413 (“The statutory language of FASA is clear and gives the court no room to exercise jurisdiction over claims made ‘in connection with the issuance or proposed issuance of a task or delivery order.’”)). “Guam Shipyard is protesting the cancellation of an RFQ [that] . . . contemplated the issuance of a task or delivery order under an existing IDIQ contract and is directly ‘in connection with’ a proposed task or delivery order.” Gov’t Mot. at 9. “[A] direct challenge to the delivery order would undeniably fall within the FASA ban,” and Plaintiff “is attempting to circumvent the clear language of FASA by indirectly seeking relief that would be unavailable in a direct challenge[.]” Gov’t Mot. at 9.

The FASA ban is not limited to situations in which a task or delivery order will necessarily be issued. Rather, the statute applies when the agency issues a task or delivery order and when the issuance is only “proposed.” See 10 U.S.C. § 2304c(e). FASA does not require that a proposed task or delivery order actually be issued. Id. Therefore, the fact that a cancellation will not lead to a delivery order does not remove the agency decision from the clear terms of the FASA ban. . . . MSC’s decision to cancel the RFQ was inextricably connected with the decision of whether to issue the proposed delivery order. It is the issuance of that proposed delivery order that [Plaintiff] hopes to gain if it prevails in this protest.

Gov’t Reply at 3 (emphasis in original).

2. Plaintiff’s Response.

Plaintiff responds that the court “has jurisdiction . . . because the cancellation of the VRA RFQ ‘may be viewed as a discrete procurement decision’ distinct from the proposed issuance of a delivery order.” Pl. Reply at 2 (quoting BayFirst Solutions, LLC v. United States, 104 Fed. Cl. 493, 507 (2012)). Plaintiff “is protesting the cancellation of a solicitation,” not the issuance or proposed issuance of a delivery order. Pl. Reply at 2. “By its very nature, the cancellation of a solicitation is a decision that is conceptually severed from the issuance or proposed issuance of a task order and clearly will not ‘lead to the proposed issuance of a task order.’” Pl. Reply at 3 (quoting Mori Assocs., Inc. v. United States, 113 Fed. Cl. 33, 38 (2013)).

Here, the cancellation of the VRA RFQ does not have a direct and causal relationship to the issuance or proposed issuance of a delivery order. The cancellation is a discrete procurement decision that does not implicate the FASA task and delivery order ban. As such, th[e c]ourt has jurisdiction to entertain [Plaintiff]’s protest.

Pl. Reply at 4 (emphasis in original).

3. The Court’s Resolution.

The Tucker Act authorizes the United States Court of Federal Claims:

to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1).

But, FASA provides that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order,” except in two circumstances not relevant to this case. 41 U.S.C. § 4106(f)(1).

The United States Court of Appeals for the Federal Circuit has held:

The statutory language of FASA is clear and gives the court no room to exercise jurisdiction over claims made “in connection with the issuance or proposed issuance of a task or delivery order.” Even if the protestor points to an alleged violation of statute or regulation, . . . the court still has no jurisdiction to hear the case if the protest is in connection with the issuance of a task order. We acknowledge that this statute is somewhat unusual in that it effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency’s egregious, or even criminal conduct. Yet Congress’s intent to ban protests on the issuance of task orders is clear from FASA’s unambiguous language.

SRA Int’l, 766 F.3d at 1413 (quoting 41 U.S.C. § 4106(f)(1)).

Here, the parties rely on two cases from the United States Court of Federal Claims to support their positions: Plaintiff cites BayFirst; and the Government cites Mori.

In BayFirst, the plaintiff filed a pre-award protest against the United States Department of State (“State Department”). 104 Fed. Cl. at 497. In 2006, the contract work originally was awarded as a small business set aside. Id. at 498. In 2010, when the incumbent lost its small business status, the State Department issued a solicitation to other small businesses. Id. Meanwhile, it anticipated awarding an interim three-month contract to BayFirst’s competitor until the solicitation could be awarded. Id. BayFirst filed a bid protest, because it sought to bid on the interim contract as well as the longer-term solicitation. Id.

In determining whether FASA precluded BayFirst’s protest, the court stated that “[t]here seems to be some variation in this court’s approach to interpreting the term ‘in connection with’ when applying the ban on task order protests in particular cases.” Id. at 502. “It appears that these variations in interpretation . . . arise in the complex and distinct fact patterns of individual bid protests.” Id. at 503. The court concluded, “Although this is a close question, the court views the State Department’s decision to cancel the Solicitation as a decision not ‘in connection with’ the proposed issuance of a task order.” Id. at 507. In support, the court stated that “[t]he cancellation of the Solicitation may be viewed as a discrete procurement decision and one which could have been the subject of a separate bid protest.” Id. Although acknowledging that “the [United States Court of Appeals for the] Federal Circuit has a broad view of the agency actions that are ‘in connection with’ a proposed procurement,” the court concluded that it “must draw a line where one ‘in connection with’ series of actions ends, and another ‘in connection with’ series of actions begins. In the court’s view, in this case that line falls squarely at the cancellation of the Solicitation.” Id. at 508. But, “the record before the court could be read either way, and the law is not entirely clear on the application of the task order protest ban.” Id. at 507.

The following year, the Mori court determined that it “[was] not even a close question” that FASA prevented a challenge to solicitation cancellation. 113 Fed. Cl. at 37. In that case, the protestor was the incumbent contractor providing information technology (“IT”) services to the National Institutes of Health (“NIH”). Id. at 35. Upon expiration of the incumbent contract, NIH awarded the contract to a competitor. Id. at 36. Following several bid protests, NIH cancelled the solicitation and awarded the contract by requesting proposals from holders of existing task order contracts—a mechanism under which the plaintiff was unable to compete. Id.

The Mori court stated that “the phrase ‘in connection with’ means that there is a direct and causal relationship between two things that are mutually dependent.” Id. at 37 (quoting DataMill, Inc. v. United States, 91 Fed. Cl. 740, 756 (2010)). “An agency’s underlying decision to procure goods or services without competition through a delivery order has a direct and causal relationship to the ‘issuance’ or ‘proposed issuance’ of the delivery order that the agency ultimately utilizes to effectuate the procurement.” Id. at 38 (quoting DataMill, 91 Fed. Cl. at 756). “Not every decision that precedes the selection of a task order vehicle is so bound up with the proposed issuance of a task order that a protest of the decision would be prohibited by FASA.” Id. “Discrete, preliminary matters that may not necessarily lead to the proposed issuance of a task order may still be protested.” Id. “But when a protest challenges a decision to obtain services by requesting proposals from [IDIQ] task order contract holders, the FASA prohibition on protests clearly applies.” Id.

In the court’s judgment, this bid protest is more analogous to Mori than BayFirst. In Bayfirst, the solicitation sought bids for a new contract, not a new task order. See Bayfirst, 104 Fed. Cl. at 507. But, in both Mori and this case, the Government cancelled a solicitation for a task order under an IDIQ contract. See Mori, 113 Fed. Cl. at 37 (finding that the protestor’s “protest of the decision to use the task order . . . . is not even a close question”); see also AR 111–16 (issuance of RFQ), 1020–28 (issuance of delivery order to Cabras). As the court in Mori determined, “when a protest challenges the decision to obtain services by requesting proposals from [IDIQ] task order contract holders, the FASA prohibition on protests clearly applies.” Mori, 113 Fed. Cl. at 38.

In any event, whatever “variations in interpretation” might have existed at the time of BayFirst, the United States Court of Appeals for the Federal Circuit subsequently clarified in SRA International that FASA prohibits bid protests in connection with task orders, even if it renders judicial review impossible. See SRA Int’l, 766 F.3d at 1413; see also Palladian Partners, Inc. v. United States, 783 F.3d 1243, 1254 (Fed. Cir. 2015) (quoting RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999) (holding that, in construing the Tucker Act, the “operative phrase ‘in connection with’ is very sweeping in scope”); see also Chameleon Integrated Servs., Inc. v. United States, 111 Fed. Cl. 564, 570 (2013) (stating that “FASA applies broadly”); see also Innovative Mgmt. Concepts, Inc. v. United States, 119 Fed. Cl. 240, 245 (2014) (dismissing a bid protest when the protestor challenged a task order award, but not “the underlying procurement vehicle”). The parties have not disclosed, and the court has not found, any post-SRA International case holding that the United States Court of Federal Claims has jurisdiction to adjudicate a bid protest concerning the cancellation of a task order solicitation. In light of SRA International, the court has determined that cancelling a task order under an IDIQ contract is “in connection with” a task order.

As such, the court has determined that FASA bars this bid protest. Because FASA bars Plaintiff’s bid protest, it is not necessary to decide the merits of the case.  (Guam Industrial Services, Inc. v U. S. and Cabras Marine Corp., No. 15-588C, August 3, 2015)  (pdf)


Under the Tucker Act, this Court has “jurisdiction to render judgment on an action by an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement.” 28 U.S.C. § 1491(b)(1) (2012). However, 10 U.S.C. § 2304c (2012), entitled “Task and delivery order contracts: orders,” imposes a restriction on the Court’s protest jurisdiction over task orders as follows:

(e) Protests. (1) 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 in excess of $10,000,000.

(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

10 U.S.C. § 2304c(e).

The first exception in paragraph (1)(A) above does not apply here because the Navy did not alter “the scope, period, or maximum value of the contract” by issuing the modified task orders. The scope of the contract remained at all times an agreement to provide meteorological support services, both before and after the Navy’s issuance of the new task orders. The period and maximum value of the contract did not change. Indeed, Trident does not contend that this first exception applies.

The second exception in paragraph (1)(B) does not apply because the Navy awarded the Atlantic region task order to ATSC for $7,527,233.28, and thus the task order did not exceed $10,000,000 in value. Even if the task order were valued greater than $10,000,000, a bid protest challenging the task order could only be brought at the GAO. 10 U.S.C. § 2304c(e)(2). Accordingly, neither exception applies, and the Court lacks subject matter jurisdiction of Trident’s protest.

Trident nevertheless requests the Court to accept jurisdiction based upon the requirements of 10 U.S.C. § 2304c(d), entitled “Enhanced competition for orders in excess of $5,000,000.” This section describes a series of competition objectives designed to “provide all contractors a fair opportunity to be considered.” Id. Trident asserts that Congress must have erred in creating these obligations for orders exceeding $5,000,000, but then limiting protests to those orders that exceed $10,000,000. Trident contends that, for orders valued between $5,000,000 and $10,000,000, such as the Atlantic region task order, Congress created a right without any remedy. Trident wants the Court to find that the protest threshold should have been $5,000,000, and asks the Court to read that change into the statute.

However, Trident fails to acknowledge that there are at least two remedies available for task orders between $5,000,000 and $10,000,000. First, under 10 U.S.C. § 2304c(f), an agency ombudsman is responsible for reviewing complaints and ensuring that a fair opportunity is afforded to all contractors competing for task orders. Under the statute, the ombudsman must be “a senior agency official who is independent of the contracting officer for the contracts and may be the agency’s competition advocate.” Id. Thus, an aggrieved contractor may always pursue relief with the designated agency ombudsman. Second, any task order that expands the scope of the underlying contract may be protested, even if it falls below the $10,000,000 threshold. The statutory scheme created in 10 U.S.C. § 2304c fits together in all respects, and the Court does not perceive any “drafting errors” by Congress. The Court will follow the legal maxim that when “statutory language is plain and unambiguous, then it controls.” Res-Care, Inc. v. United States, 735 F.3d 1384, 1388 (Fed. Cir. 2013) (citations omitted).  (Trident Technologies, LLC v. U. S., No. 14-531C, September 22, 2014)  (pdf)


Under the Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(a)-(b), 110 Stat. 3870, 3874 (1996), our court would normally:

have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.

28 U.S.C. § 1491(b)(1) (2006). But this jurisdiction is curtailed by a provision of FASA, which states that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order,” except in circumstances that are not relevant to this matter. 41 U.S.C. § 4106(f)(1) (2006). The question of our jurisdiction turns on whether a protest of the decision to request proposals from holders of a task order contract, instead of using the GSA Schedule 70, should be considered too connected to the proposed issuance of a task order to survive the FASA prohibition.

It has been brought to the attention of the Court that dictum from an opinion in the related MORI Associates case suggested an interpretation of the term “proposed issuance” that would place the current matter outside the FASA prohibition. See Pl.’s Br. at 15 (citing MORI Assocs., 102 Fed. Cl. at 534 n.33.); Def.’s Br. at 10-12. It was there presumed that a “proposed issuance” of a task order would not occur until “after a source has been selected among the task order contract holders.” MORI Assocs., 102 Fed. Cl. at 534 n.33. Thus, the Court mused that a protest “in connection with” the issuance or proposed issuance of a task order concerned the decision to select an awardee of a task order, “not the decision to use the task order contracts to obtain the relevant services.” Id.

At that time, the Court was equating a “proposed issuance” with a proposed contract award --- the latter having been a significant concept when our equitable relief extended only to pre-award protests, since the selection of another offeror was often what allegedly deprived the protester of fair and honest consideration of its offer. See, e.g., CACI, Inc.-Fed. v. United States, 719 F.2d 1567, 1574 (Fed. Cir. 1983). Whether a protest affecting a solicitation for task order proposals was “in connection with” a “proposed issuance” of a task order was not at issue in the related MORI Associates opinion, as the Court held that a small business set-aside decision was a “logically distinct step” that was required prior to the selection of a procurement vehicle. MORI Assocs., 102 Fed. Cl. at 533-34.4 Now that the issue is more squarely presented, the Court is of the opinion that the term “proposed issuance of a task or delivery order” is more akin conceptually to a term in the Tucker Act other than “proposed award.” Just as a “proposed contract” is the object of “a solicitation by a Federal agency for bids or proposals,” 28 U.S.C. § 1491(b)(1), the “proposed issuance of a task or delivery order,” 41 U.S.C. § 4106(f), is the object of the decision to solicit goods or services from holders of task order contracts.

The “proposed issuance of a task or delivery order,” thus, has already occurred with the issuance of the NITAAC CIO-SP3 solicitation for help desk services proposals. DA at 17-48. The question still remains whether MORI’s protest of the decision to use the task order vehicle instead of a GSA Schedule 70 competition is a protest “in connection with” this proposed issuance. Upon careful reflection, the Court concludes it is not even a close question. The Court finds persuasive the interpretation of the phrase “in connection with” that is contained in the DataMill opinion. See DataMill, Inc. v. United States, 91 Fed. Cl. 740, 756 (2010). It was there explained that “the phrase ‘in connection with’ means that there is a direct and causal relationship between two things that are mutually dependent,” and determined that “[a]n agency’s underlying decision to procure goods or services without competition through a delivery order has a direct and causal relationship to the ‘issuance’ or ‘proposed issuance’ of the delivery order that agency ultimately utilizes to effectuate the procurement.” Id.

Not every decision that precedes the selection of a task order vehicle is so bound up with the proposed issuance of a task order that a protest of the decision would be prohibited by FASA. Discrete, preliminary matters that may not necessarily lead to the proposed issuance of a task order may still be protested. Thus, in the related MORI Associates case, a “Rule of Two” determination under 48 C.F.R. § 19.502-2(b) was found to be required prior to the selection of a particular procurement vehicle, since whether the work must be set aside for small business must be known before an agency can select the means of fulfilling its needs. MORI Assocs., 102 Fed. Cl. at 533-34. In Savantage Financial Services, the choice of particular brand name products was found to be distinct from the use of a task order solicitation to obtain those products. See Savantage Fin. Servs., Inc. v. United States, 81 Fed. Cl. 300, 305, 308 (2008). And in BayFirst Solutions, the cancellation of a solicitation (under which the protester had competed for an award) was found to be distinct from the decision to issue a task order for a bridge contract to be performed while a new competition was held. BayFirst Solutions, LLC v. United States, 104 Fed. Cl. 493, 498-99, 507-08 & n.11 (2012).

Procurement decisions that are made after task orders have been issued are similarly not affected by the FASA prohibition. These include the assignment of new work to an existing task order through a modification, see Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 410-15 (2009), or the use of an already-issued task order to obtain products and services through subcontracts, see Distributed Solutions, Inc. v. United States, 104 Fed. Cl. 368, 371 n.5, 372, 380, 385 n.24 (2012). There is no direct, causal relationship between these decisions and the issuance of task orders to fulfill an agency’s needs, since the task orders had already issued.

But when a protest challenges the decision to obtain services by requesting proposals from indefinite delivery/indefinite quantity task order contract holders, the FASA prohibition on protests clearly applies. See Mission Essential Pers., LLC v. United States, 104 Fed. Cl. 170, 179 (2012). This is the situation presented by this case. Plaintiff is not protesting the selection of a particular brand of help desk services, which can be conceptually severed from the choice of the task order vehicle, or the use of already-issued task orders to perform these services. Nor was there a cancellation of a formal solicitation of proposals from the GSA Schedule 70 contractors. Instead, MORI protests the agency’s decision to use the NITAAC CIO-SP3 Small Business GWAC instead of GSA Schedule 70 to obtain help desk services. In choosing to solicit proposals from the CIO-SP3 task order contract holders, see DA at 17-48, the agency has proposed the issuance of a task order to fulfill its help desk needs. Plaintiff’s protest is thus clearly in connection with the proposed issuance of a task order, and our jurisdiction is prohibited by FASA. See 41 U.S.C. § 4106(f)(1). The government’s motion to dismiss the case is GRANTED, and MORI’s motion for a preliminary injunction is DENIED as MOOT.

III. CONCLUSION

For the foregoing reasons, the Court concludes that plaintiff protests a procurement decision in connection with the proposed issuance of a task order --- a matter which is beyond our jurisdiction due to 41 U.S.C. § 4106(f)(1). Accordingly, the government’s motion to dismiss the case under RCFC 12(b)(1) is GRANTED, and plaintiff’s motion for a preliminary injunction is DENIED as MOOT. The Clerk shall close the case.  (MORI Associates, Inc., v. U. S., No. 13-671C, October 1, 2013)  (pdf)


Defendant moves to dismiss the complaint for lack of jurisdiction. It asserts that FASA exempts this task order award from protest. Defendant is correct that FASA generally is an impediment to the assertion of jurisdiction by this court over the protest of a task order. 41 U.S.C. §§ 4106(a), 4106(f) (Supp. V 2011); see, e.g., A & D Fire Protection Inc. v. United States, 72 Fed. Cl. 126, 133-34 (2006). In this case USDA issued an order under a preexisting task order contract, which appears to have been issued subject to FASA. See 41 U.S.C. § 4103(a) (defining task order contracts); STARS II § I.1.1 (stating that it is an indefinite delivery/indefinite quantity contract).

Plaintiff asserts, however, that appearances can be deceiving and that the STARS II GWAC under which the award was issued is not a task order contract subject to FASA. It argues that FASA applies only to “traditional task and delivery order contracts.” Pl.’s Reply 3. A traditional task and delivery order contract, according to plaintiff, involves a small number of contractors who then bid on subsequent orders. Plaintiff cites for support the decisions in Wildflower International, Ltd. v. United States, 105 Fed. Cl. 362 (2012), and Solute Consulting v. United States, 103 Fed. Cl. 783 (2012). These decisions, according to plaintiff, “involve[d] . . . one or a small handful of contractors.” Pl.’s Reply 2. Plaintiff contends that such a scenario is fundamentally different from a situation, such as the STARS II GWAC here, in which hundreds of contractors obtain access to a master contract. Plaintiff points out that STARS II is issued to “over 580 companies,” id. at 3, and further states it is “open to any 8(a) company.” Id. at 2.

Plaintiff contends that such mass contracting at the master contract level is similar to the GSA Federal Supply Schedule (“FSS”) program, which is not subject to the protest restrictions attendant to task order contracts authorized by FASA. See, e.g., Data Mgmt. Servs. Joint Venture v. United States, 78 Fed. Cl. 366, 371 n.4 (2007). It urges the court not to be bound by what plaintiff believes are the agency’s gratuitous references to FAR Subpart 16.5 in the STARS II GWAC. Instead, it argues that we should ignore the agency’s attempt to characterize what it did as pursuant to a FASA contract vehicle and instead deem it to be some other, unidentified contracting device, but one which is subject to the court’s bid protest jurisdiction. Plaintiff does not, we note, contend that STARS II is an FSS contract. It would be difficult to do so, as the services were not sought from that program.  

There is no support in statute, regulation, or case law for plaintiff’s attempt to bracket the reach of FASA. The definition of task order contract in section 4103 of FASA does not limit these contracts to procurements involving a “small handful of contractors.” See 41 U.S.C. § 4103(a) (defining task order contracts and containing no limits on the number of vendors). FAR Subpart 16.5 parrots this definition. See 48 C.F.R. § 16.501 (2012) (“Task order contract means a contract for services that does not procure or specify a firm quantity of services (other than a minimum or maximum quantity) and that provides for the issuance of orders for the performance of tasks during the period of the contract.”).

GWACs, moreover, are specifically embraced within FAR Subpart 16.5, which sets out rules for task order contracts. See 48 C.F.R. § 16.505(a)(8) (addressing interagency contracts, including GWACs); see also 48 C.F.R. § 2.101 (defining a GWAC as a “task-order or delivery-order contract for information technology established by one agency for Governmentwide use”). The assumption that follows is that the entirety of FAR 16.505 applies to GWACs. See John Cibinic, Jr., Ralph C. Nash, Jr., & Christopher R. Yukins, Formation of Government Contracts 1195 (4th ed. 2011) (stating that FAR 16.505 applies to orders under GWACs).

Nor do the cases cited by plaintiff show that FASA limits itself to a certain type of task order contract. In Solute Consulting, the Navy awarded the order under a task order contract that had been awarded to a single entity. 103 Fed. Cl. 783, 784-85. Nothing in that case provides a basis for limiting FASA’s application to only task order contracts with a limited number of awardees. In Wildflower International, the court discussed whether FASA applied to a task order in which four bids were submitted. 105 Fed. Cl. 362, 371-72. The case makes no reference to the size of the master contract, see id. at 367-68, and does not comment on whether that would matter.

Plaintiff cites Idea International Inc. v. United States, 74 Fed. Cl. 129 (2006), for the proposition that “FASA itself makes it clear that its task order protest limitation only applies to traditional task and delivery order contracts.” Pl.’s Reply 3. The language “traditional task and delivery order contracts” does not appear in the long excerpt plaintiff quotes from that decision. The court merely notes that GSA Schedule contracts existed before FASA was adopted, 74 Fed. Cl. at 135, and were authorized pursuant to a completely different regulatory program, id. at 135-36. It also notes that FASA specifically did not purport to affect GSA Schedule contracts. Id. at 135-36 (citing 10 U.S.C. § 2304a(g) (2000)).

Our prior precedent shows that FASA applies broadly. In MED Trends, Inc. v. United States, 102 Fed. Cl. 1, 2 (2011), this court analyzed the GSA “VETS GWAC.” Although we found that the FASA protest bar did not apply because of a sunset provision, we recognized: “There is no question that, had this protest been brought one month earlier, the court would not have been able to exercise jurisdiction.” Id. at 4; see also Enterprise Info. Servs, Inc., B- 403028, 2010 WL 3554592 at *1 n.1 (Comp. Gen. Sept. 10, 2010) (exercising jurisdiction over the protest of an award under the predecessor to STARS II because characteristics of the order satisfied FASA requirements); Global Computer Enters., Inc., B-310823, 2010 WL 314520 at *3-5 (Comp. Gen. Jan. 31, 2008) (addressing a protest to the change in scope of a task order issued under a GWAC and stating that FASA barred jurisdiction).

Plaintiff also argues that the fact that the STARS II GWAC is interagency in nature (with USDA as the customer and GSA as the executive agent) makes it look like the GSA FSS program. That is true, but immaterial. Plaintiff does not contend that the procurement here is subject to the FSS and offers no category other than FASA under which to treat the task order. Plaintiff fails to rebut the presumption that FASA applies to the STARS II contract. We therefore do not have jurisdiction.  (Chameleon Integrated Services, Inc. v. U. S. and CSSS.net, No 13-144C, May 29., 2013)  (pdf)


A. The Federal Acquisition Streamlining Act’s Limitation on Protests of Civilian Agency Task or Delivery Orders Did Not Bar Wildflower’s Action

When It Was Filed in November 2011 Because the Limitation Expired on May 27, 2011 In 1994, Congress passed the Federal Acquisition Streamlining Act (“FASA”), Pub. L. No. 103-355, 108 Stat. 3243. FASA contained a provision stating that “[a] protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.” FASA, § 1054, 108 Stat. at 3264 (codified as amended at 41 U.S.C. § 4106(f)). That provision pertained to the issuance or proposed issuance of task or delivery orders by civilian agencies. FASA also contained a provision limiting protests of defense agency task or delivery orders. See FASA, § 1004, 108 Stat. at 3253 (codified as amended at 10 U.S.C. § 2304c(e)).

Initially, it was not entirely clear whether FASA’s limitation applied to civil actions in this court. See A & D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 133 (2006); Labat- Anderson Inc. v. United States, 50 Fed. Cl. 99, 105 (2001). Since that time, the courts have interpreted FASA’s limitation, which refers to “a protest,” as applying to actions in the Court of Federal Claims. See, e.g., A & D Fire Prot., Inc., 72 Fed. Cl. at 133 (“This court cannot frustrate the intent of Congress . . . . In the place of agency protests, [GAO] protests or judicial review, Congress saw fit to offer disappointed task order bidders recourse to the agency’s task and delivery order ombudsman.”).

The Court of Federal Claims has held that FASA’s limitation on protests of task or delivery orders is jurisdictional. See, e.g., Solute Consulting v. United States, No. 12-37C, 2012 WL 826721, at *11 (Fed. Cl. Mar. 13, 2012); Furniture by Thurston v. United States, No. 11-663, 2012 WL 591622, at *4 n.8 (Fed. Cl. Feb. 21, 2012); MORI Assocs., Inc. v. United States, 102 Fed. Cl. 503, 541 (2011); MED Trends, Inc. v. United States, 102 Fed. Cl. 1, 4–5 (2011); DataMill, Inc. v. United States, 91 Fed. Cl. 740, 762 (2010); Global Computer Enters., Inc. v. United States, 88 Fed. Cl. 350, 409 (2009), modified on other grounds by 88 Fed. Cl. 466 (2009); A & D Fire Prot., Inc., 72 Fed. Cl. at 133 n.7.

In 2008, as part of the National Defense Authorization Act for Fiscal Year 2008 (“2008 NDAA”), Congress authorized protests of civilian agency task or delivery orders valued in excess of $10 million and gave GAO exclusive jurisdiction to hear such protests. Pub. L. No. 110-181, § 843(b)(2)(C), 122 Stat. 3, 239 (codified as amended at 41 U.S.C. § 4106(f)). Congress also added a three-year sunset date. The provision in the 2008 NDAA governing protests of civilian agency task or delivery orders read as follows:

(e) PROTESTS.—(1) 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) Notwithstanding section 3556 of title 31, United States Code, the Comptroller
General of the United States shall have exclusive jurisdiction of a protest
authorized under paragraph (1)(B).
(3) This subsection shall be in effect for three years, beginning on the date that is
120 days after the date of the enactment of the National Defense Authorization
Act for Fiscal Year 2008.

Id. The 2008 NDAA was enacted on January 28, 2008. Accordingly, paragraph (3) provided that “this subsection” would expire on May 27, 2011. The 2008 NDAA made similar amendments to the provision limiting protests of defense agency task or delivery orders. See 2008 NDAA, § 843(a)(2)(C), 122 Stat. at 237 (codified as amended at 10 U.S.C. § 2304c(e)).

In January 2011, before the sunset date, Congress extended the sunset date with respect to the FASA provision limiting the protests of defense agency task or delivery orders. See Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (“2011 NDAA”), Pub. L. No. 111-383, § 825, 124 Stat. 4137, 4270 (codified as amended at 10 U.S.C. § 2304c(e)). The amended sunset provision identified the paragraphs to which it applied: “(3) Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” Id. (emphasis added).

May 27, 2011 came and went without an extension of the sunset date with respect to the provision limiting protests of civilian agency task or delivery orders. This raised the question whether paragraph (3) of 41 U.S.C. § 4106(f), which provided that “this subsection” would expire, referred to the entire subsection (f) of § 4106 or only to paragraphs (1)(B) and (2)— whether the sunset date caused the limitation on protests of civilian agency task or delivery orders to expire on May 27, 2011 or caused only the authorization of protests of orders valued in excess of $10 million and the GAO’s exclusive jurisdiction over such protests to expire.

In November 2011, Wildflower filed this bid protest action challenging a civilian agency delivery order in the Court of Federal Claims, after having withdrawn its protest at GAO. It is undisputed that Wildflower’s protest is neither a protest of an order valued in excess of $10 million nor a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued. After Wildflower filed this action in November 2011, the president on December 31, 2011 signed the National Defense Authorization Act for Fiscal Year 2012 (“2012 NDAA”), Pub. L. No. 112-81, 125 Stat. 1298 (2011). The 2012 NDAA extended the sunset date in paragraph (3) of 41 U.S.C. § 4106(f) and amended the language of paragraph (3) so that it stated to which paragraphs the sunset date applied: “(3) EFFECTIVE PERIOD.—Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” 2012 NDAA, § 813, 125 Stat. at 1491. Whereas the sunset date in the 2008 NDAA applied to “this subsection,” the paragraph containing the sunset date as amended by the 2012 NDAA referred only to the authorization of protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests.

Based on the plain and unambiguous language of the 2008 NDAA, the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011. See MORI Assocs., 102 Fed. Cl. at 536–37; see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“[W]here the statutory language provides a clear answer, [the court’s analysis] ends there . . . .”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” (citations omitted) (quoting Rubin v. United States, 449 U.S. 424, 430 (1981))); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). In this case, relying on the plain and unambiguous language does not lead to an absurd result. See MORI Assocs., 102 Fed. Cl. at 539–40. The legislative history of the 2008 NDAA does not embody an extraordinary showing of intentions contrary to the plain and unambiguous language of the statute. See Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 395 (Fed. Cir. 1990) (“[T]he legislative history should usually be examined at least ‘to determine whether there is a clearly expressed legislative intention contrary to the statutory language.’” (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir. 1989))).

Defendant and Govplace ask the Court to depart from the plain and unambiguous language of the 2008 NDAA in light of statutes enacted subsequent to the 2008 NDAA and their legislative history—specifically, the 2012 NDAA and the 2012 NDAA’s legislative history as well as the 2011 NDAA. “The question of how much weight a court should accord to subsequent legislation and subsequent legislative history is one that has troubled many judges throughout the years.” In re Conner Home Sales Corp., 190 B.R. 255, 259 (E.D.N.C. 1995). “[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U.S. 304, 313 (1960).

The Federal Circuit has observed that “[t]here appears to be some confusion as to the role of later statutes in interpreting earlier ones.”4 Thompson v. Cherokee Nat. of Okla., 334 F.3d 1075, 1092 (Fed. Cir. 2003), aff’d sub nom. Cherokee Nat. of Okla. v. Leavitt, 543 U.S. 631 (2005). The Federal Circuit has also explained “there appears to be general agreement that a later statute cannot be read as clarifying the meaning of an earlier statute where the earlier statute is unambiguous and the later statute is ambiguous.”5 Id. at 1092. The Supreme Court affirmed the Federal Circuit, specifically rejecting the use of a later statute to interpret earlier ones because the earlier statutes were not ambiguous. Cherokee Nat. of Okla., 543 U.S. at 646–47.

Here, as discussed supra, the plain and unambiguous language of the 2008 NDAA makes clear that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011. The statutes enacted subsequent to the 2008 NDAA are ambiguous with respect to whether subsequent Congresses believed that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011.

In January 2011, before the enactment of the 2012 NDAA, Congress enacted two other statutes.

In one, the provision relating to defense contracts was changed to sunset in 2016 the subparagraph authorizing task order protests exceeding $10 million, and the GAO’s exclusive authority over them. In the other, Congress expressly stated its recodification of title 41[, which included the limitation on protests of civilian agency task or delivery orders,] was intended to conform to the original intent of the enacting Congresses, with corrections to address ambiguities, and its only change to the FASA sunset was the housekeeping insertion of the actual date of passage.

MORI Assocs., 102 Fed. Cl. at 541 (citations omitted). These statutes are ambiguous—if not irrelevant—with respect to the issue whether the 111th Congress believed that the limitation on protests of civilian agency task or delivery orders expired on May 27, 2011.

With the 2012 NDAA, the 112th Congress amended paragraph (3) of § 4106(f), which relates to protests of civilian agency task and delivery orders, by inserting the following paragraph: “(3) EFFECTIVE PERIOD.—Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.” The parties have proffered at least two ways that the 2012 NDAA’s amendment to the paragraph containing the sunset date can be interpreted as it relates to the paragraph containing the sunset date in the 2008 NDAA.

One could conclude from the 2012 NDAA, as Wildflower does, that the 112th Congress believed that FASA’s limitation on protests of civilian agency task or delivery orders expired in May 2011. Stated differently, the perceived need to state to which paragraphs the 2012 NDAA sunset date applied shows that Congress understood that the sunset date in the 2008 NDAA caused the entire subsection (f) to expire, not only the provision authorizing protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests. Pl.’s Resp. to Def.’s & Intervenor’s Mots. to Dismiss for Lack of Jurisdiction (“Pl.’s Supplemental Resp.”) 8–9 (citing Med Trends, Inc., 102 Fed. Cl. at 6) (docket entry 55, Feb. 15, 2012).

However, one could also argue, as defendant and Govplace do, that the 2012 NDAA shows the 112th Congress believed that the 2008 NDAA sunset date did not affect the entirety of subsection (f). According to defendant and Govplace, the 2012 NDAA only addressed the authorization of protests of orders valued in excess of $10 million and GAO’s exclusive jurisdiction over such protests. Because the 2012 NDAA did not address the limitation on protests or the authority of the Court of Federal Claims to hear protests of task and delivery orders related to the scope, period, or maximum value of the underlying contract, Congress must have assumed that these two provisions remained in effect. See Def.-Intervenor’s Mot. to Dismiss for Lack of Subject Matter Jurisdiction (“Def.-Intervenor’s Supplemental Mot.”) 4–5; Def.-Intervenor’s Reply to Pl.’s Resp. to Def.-Intervenor’s Mot. to Dismiss (“Def.-Intervenor’s Supplemental Reply”) 2–6 (docket entry 60, Feb. 27, 2012); Def.’s Mot. to Dismiss (“Def.’s Supplemental Mot.”) 8; Def.’s Reply in Supp. of Its Mot. to Dismiss (“Def.’s Supplemental Reply”) 6–8 (docket entry 67, Mar. 7, 2012); Mar. 14, 2012 Hr’g at 10:05:35.

As demonstrated by the parties’ arguments above, the 2012 NDAA is ambiguous with regard to the scope of the sunset provision in the 2008 NDAA. Because the language of the earlier statute is plain and unambiguous, this case does not present an occasion to depart from the plain meaning of the earlier statute based on subsequent enactments. See Thompson, 334 F.3d at 1092.

With regard to subsequent legislative history, defendant and Govplace cite Senate and House reports on the 2012 NDAA to suggest that some members of the 112th Congress believed that the limitation on protests of civilian agency task or delivery orders did not expire on May 27, 2011. See Def.’s Supplemental Mot. 8; Def.’s Supplemental Reply 12; Def.-Intervenor’s Supplemental Mot. 4; Def.-Intervenor’s Supplemental Reply 4, 8. For example, defendant and Govplace cite a report by the House Committee on Armed Services that stated that the 2008 NDAA had “temporarily expanded the [GAO’s] jurisdiction to hear bid protests by authorizing it to hear protests on task and delivery orders valued in excess of $10.0 million” and that “[t]he authority was provided with a sunset in 2011 in order to allow Congress to evaluate the effectiveness of the expanded jurisdiction and gauge the impact of increased workload on GAO.” H.R. Rep. No. 112-78, at 171–72 (2011); see also S. Rep. No. 112-16, at 3 (2011).

The Court is not persuaded that the legislative history of subsequent enactments sheds significant light on the meaning of the 2008 NDAA. See, e.g., MORI Assocs., Inc., 102 Fed. Cl. at 541 (finding that subsequent legislative history did not control the meaning of the 2008 NDAA). The language of the 2008 NDAA is clear. Additionally, subsequent legislative history is less weighty than subsequent statutes in interpreting the meaning of an earlier statute. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980). Moreover, as the Supreme Court has stated, “[E]ven when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment.” Id.

For these reasons, when Wildflower’s action was filed in November 2011, the limitation on protests of civilian agency task or delivery orders did not bar Wildflower’s bid protest action because the limitation had expired.  (Wildflower International, Ltd. v. U. S. and Govplace Inc., No. 11-734C, June 5, 2012)  (pdf)


I. Jurisdiction

A.  Defendant’s Motion to Dismiss Based on 41 U.S.C. § 4106(f)

There is no question that, had this protest been brought one month earlier, the court would not have been able to exercise jurisdiction. Under the Federal Acquisition Streamlining Act of 1994 (“FASA”), as amended, protests of FASA task orders (other than those challenging an increase in scope) could be brought only before the Government Accountability Office (“GAO”), and then only if the amount in controversy exceeded $10,000,000. 41 U.S.C. § 4106(f) (West Supp. 2011). Section 4106(f) contains the following sunset provision, however: “This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.” Plaintiff contends that, because the time prescribed in subsection (f) expired on May 27, 2011, the jurisdictional bar to court review of such protests has been eliminated. In the absence of subsection (f), there is nothing that prevents this court from exercising its general bid protest jurisdiction under 28 U.S.C. § 1491(b)(1).

The government disagrees. It concedes that a literal reading of the< sunset provision means that all of section 4106(f) is vacated. It points to legislative history that it believes conclusively demonstrates that Congress intended the repeal to apply only to that portion of section 4106(f) that granted jurisdiction to the GAO over any protest of a FASA task order award greater than $10,000,000.

The jurisdictional bar at issue first arose as part of FASA, a “comprehensive overhaul of the federal acquisition laws,” S. Rep. No. 103- 258, at 3 (1994), intended to “simplify and streamline” the often burdensome requirements for competitive acquisitions. Digital Tech, Inc. v. United States, 89 Fed. Cl. 711, 719 (2009); see Navarro Research & Eng., Inc. v. United States, 94 Fed. Cl. 224, 227-28 (2010). As part of this simplification, FASA encouraged federal agencies to use “multiple task order contracts, in lieu of single task order contracts” when possible. Digital Tech, 89 Fed. Cl. at 719. Multiple task order contracts allow an agency to use an initial competitive process to select a contractor or pool of eligible contractors, secure contract terms, and make subsequent orders within that smaller group of contractors.

As originally written, FASA generally barred any protest concerning the issuance or proposed issuance of a task order. The only exception to this rule was “on the ground that the order increased the scope, period, or maximum value of the contract under which the order is issued.” 41 U.S.C. § 253j(d) (2006) (re-codified at 41 U.S.C. § 4106(f) by Pub. L. No. 111-350, 124 Stat. 3677 (2011)). In 2008, under the National Defense Authorization Act (“NDAA”), Congress added another limited exception to FASA’s general bid protest preclusion: task orders valued over $10 million could be protested at GAO. National Defense Authorization Act of 2008, Pub. L. No. 110-181, § 843, 122 Stat. 3, 236-37 (2008). Also at that time, a three-year sunset clause was inserted. Id. The current version of the jurisdictional statute reads as follows:

(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.—This subsection shall be in effect for three years, beginning on the date that is 120 days after January 28, 2008.

41 U.S.C. § 4106(f) (West Supp. 2011).

The question posed by the motion to dismiss is whether section 4106(f)(3) applies to the whole of subsection (f) or only to paragraph (f)(1)(B).

The government argues that, notwithstanding the clear language of the statute, the legislative history associated with the 2008 amendment makes clear that the grant of jurisdiction to GAO in 2008 was a short-term experiment. The sunset provision, it contends, was intended to affect only that experiment and not the whole of section 4106.

The government points to two sources to support its interpretation of the legislative history: the conference report regarding the NDAA and draft legislation that is pending before Congress. With respect to the conference report, the government relies on the statement: “The provision would raise the threshold for bid protests to $10.0 million and sunset the authorization for bid protests after three years. The conferees expect that the sunset date will provide Congress with an opportunity to review the implementation of the provision and make any necessary adjustments.” H.R. Rep. No. 110-477, at 956 (2007) (Conf. Rep.). With respect to the pending legislation, the government relies on Senate Bill 498 and House Bill 899, both of which make clear that the sunset date, which would be extended, applies only to the specific grant of jurisdiction to GAO: “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.’” H.R. 899, 112th Cong. § 1 (2011); see also S. 498 112th Cong. § 2 (2011). The language in the committee report accompanying Senate Bill 498 explains that the purpose of the original sunset provision was to “allow Congress the opportunity to assess the impact of the [high-value] protests on [the] Federal procurement system before deciding whether to extend, or let expire, the authority.” S. Rep. No. 112-16, at 3 (2011).

The proposed legislation demonstrates two things. First, the perceived need for it suggests that Congress understands that the existing sunset provision does not accomplish the same result. Second, the proposals demonstrate that Congress can legislate with precision when it chooses to do so. Both observations reinforce our reluctance to follow the government’s invitation to tell Congress what we think it really intended in 2008.

The legislature “says in a statute what it means and means in a statute what it says there.” BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (quoting Conn. Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992)). For that reason, “our inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” Id.; see also United States v. Gonzales, 520 U.S. 1, 9 (1997) (“[T]he straightforward language of [the statute] leaves no room to speculate about congressional intent.”). In this case, the term “subsection” used in section 4106 has a commonly understood and unambiguous meaning: a division of a section. 17 Oxford English Dictionary 56 (2d ed. 1989). Therefore, when section 4106(f)(3) refers to “this subsection,” it can mean only one thing: the division of section 4106 labeled as (f).

While the government suggests that the meaning of even straightforward statutes can be subject to modification upon resort to legislative history, we read that practice as available only when a straightforward reading leads to an absurd result. See, e.g., Crooks v. Harrelson, 282 U.S. 55, 59-60 (1930). Here, a default to the court’s general jurisdiction over bid protests under 28 U.S.C. § 1491(b)(1) would not be an absurd result.  (MED Trends, LLC, v. U. S. and  MicroTechnologies, LLC, No. 11-420, September 13, 2011)  (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
Guam Industrial Services, Inc. v U. S. and Cabras Marine Corp., No. 15-588C, August 3, 2015  (pdf)  
Trident Technologies, LLC v. U. S., No. 14-531C, September 22, 2014  (pdf)  
MORI Associates, Inc., v. U. S., No. 13-671C, October 1, 2013  (pdf)  
Chameleon Integrated Services, Inc. v. U. S. and CSSS.net, No 13-144C, May 29., 2013  (pdf)  
Wildflower International, Ltd. v. U. S. and Govplace Inc., No. 11-734C, June 5, 2012  (pdf)  
MED Trends, LLC, v. U. S. and  MicroTechnologies, LLC, No. 11-420, September 13, 2011  (pdf)  
Legal

Protests

Bona Fide Needs Rule
Public Laws
Legislation
Courts & Boards


Rules & Tools
Workforce
Reading

Small Business
 

   
 
 

ABOUT  l CONTACT