As we discussed in a previous post, there has been some confusion regarding the availability of task order protest jurisdiction following the expiration of the sunset provision enacted as part of the 2008 National Defense Authorization Act.
Section 843(e) of the 2008 National Defense Authorization Act granted GAO jurisdiction to hear bid protests of task orders in excess of $10 million. This was an expansion of the limit on task order protest jurisdiction imposed by section 2304c of the Federal Acquisition Streamlining Act, which prohibited task order protests altogether unless there was a challenge involving the scope, period, or maximum order value of the underlying contract. The 2008 NDAA included a “sunset” provision indicating that the subsection dealing with task order protest jurisdiction (FASA and the expansion effected by the 2008 NDAA) would expire after three years—in May of 2011. The limitations on task order protest jurisdiction were expanded for DOD agency procurements as part of the 2011 NDAA, but no similar extension was passed for civilian agency matters.
GAO released a decision (Technatomy Corp., B-405130 (June 14, 2011) [pdf]) in June indicating that the expiration of the sunset provision meant that the entire subsection limiting the availability of task order protest jurisdiction disappeared, essentially reverting GAO’s civilian agency task order protest jurisdiction to a limitless pre-FASA state. Our discussion of the Technatomy case is available here.
The Court of Federal Claims agrees with GAO. In his September 13 decision in Med Trends, Inc. v. United States, No. 11-420 (Fed. Cl. Sept. 13, 2011) [pdf], Judge Bruggink concludes that the expiration of the sunset provision in the 2008 NDAA repealed the subsection dealing with limits on task order protest jurisdiction in its entirety. Accordingly, he found valid subject matter jurisdiction at the Court of Federal Claims, where Med Trends challenged a DOL task order award in excess of $10 million. The protest would previously have fallen under the exclusive jurisidction of GAO after the 2008 jurisdictional expansion.
The Court’s decision in the Med Trends protest reflects the availability of another option for challenging civilian task order awards. As it stands now, protests of DOD task orders in excess of $10 million can be brought only at GAO, but civilian agency task order protests can be brought to GAO or COFC. Neither venue is subject to the jurisdictional limitations of FASA or the NDAA.
Image: Sean MacEntee