Good Morning -

If you are not aware as of this morning, S.498, which extends the sunset date on the protestability of task orders (placed by civilian agencies) over $10M placed under an IDIQ contract is currently held up in the Senate. Although the sunset date was changed in the DFARS with the 2011 NDAA, civilian agencies were not addressed. The disparity was addressed by both H.R.899 and S.498 but because these were introduced separately, they had to go to CBO for a cost estimate. CBO estimates that such costs would total a few million dollars over the 2011-2016 period so the bill is being "held at desk" per the THOMAS web site this morning.

So as of 8am, the ability to protest task orders simply because they are over $10M will expire at midnight tonight for civilian agencies. Guess we get to wait and see what happens next.

OK, if it doesn't pass, contractors will not be able to protest the award of a task order issued by a civilian agency. But what if the IDIQ contract was issued by a civilian agency -- DOE -- and the task order was issued by a DOD agency, let's say the Army? Can that task order be protested, since it was awarded by a DOD agency?

I would say yes, since the protest authority talks about a task order, but I would like to hear what others think.

OK, if it doesn't pass, contractors will not be able to protest the award of a task order issued by a civilian agency. But what if the IDIQ contract was issued by a civilian agency -- DOE -- and the task order was issued by a DOD agency, let's say the Army? Can that task order be protested, since it was awarded by a DOD agency?

I would say yes, since the protest authority talks about a task order, but I would like to hear what others think.

Was at an acquisition forum and spoke to 2 different lawyers from GAO because I do assisted acquisitions at GSA and my clients are DoD. Both said they thought you would follow the rules based on the money. In my case I'm obligating GSA funds, using those funds to pay the contractor invoices then I turn around and bill DoD. One guy said Civilian agency rules would apply; the other said DoD rules would apply.

Our legal said this week that there may be bigger issue. As read nows 41 USC Sec. 253j says

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( 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 January 28, 2008.

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Seems there is also debate if ANY protest would be allowed because ( e)(3) says subsection shall be in effect, which could be read to mean the entire para (e) and not just ( e )(1)( B ).

Next couple of weeks could be really, really interesting

Was at an acquisition forum and spoke to 2 different lawyers from GAO because I do assisted acquisitions at GSA and my clients are DoD. Both said they thought you would follow the rules based on the money. In my case I'm obligating GSA funds, using those funds to pay the contractor invoices then I turn around and bill DoD. One guy said Civilian agency rules would apply; the other said DoD rules would apply.

Our legal said this week that there may be bigger issue. As read nows 41 USC Sec. 253j says

-----

( 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 January 28, 2008.

------

Seems there is also debate if ANY protest would be allowed because ( e)(3) says subsection shall be in effect, which could be read to mean the entire para (e) and not just ( e )(1)( B ).

Next couple of weeks could be really, really interesting

I think any argument that a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued would no longer be allowed is baseless. If the entire paragraph (e) is no longer in effect, then you?d be back to the way it was before paragraph (e) came into effect, and before that, couldn?t interested parties protest on the ground that the order increased the scope, period, or maximum value of the contract under which the order was issued? So wouldn?t removal of paragraph (e) have no effect on that kind of protest?