Until recently, many people had assumed that GAO no longer had jurisdiction over civilian agency task order protests in excess of $10 million. But GAO’s decision in Technatomy Corp. (B-405130) [PDF] held otherwise.
Prior to passage of the Federal Acquisition Streamlining Act (FASA) in 1994, GAO’s jurisdictional statute did not distinguish between protests of contract awards and protests of task orders. Under FASA, the scope of GAO’s jurisdiction over task order protests was significantly narrowed, and task order protests were only authorized if based upon allegations that the order increased the scope, period, or maximum value of the contract. This limitation applied to task orders issued by both Department of Defense (DoD) agencies and civilian agencies. As part of the 2008 National Defense Authorization Act (NDAA), FASA was amended to expand GAO’s jurisdictional limitation on task order protests to allow protests of task orders valued in excess of $10 million. The amended subsection included a sunset provision indicating that it would only be in effect for three years (until May 27, 2011). GAO’s jurisdiction over DoD task order protests was extended as part of the 2011 NDAA, but there was no similar extension for civilian agency task order protests—leading to the general assumption that GAO’s jurisdiction over civilian agency task order protests in excess of $10 million expired on May 27, 2011.
On June 14, 2011, GAO set the record straight with its decision in Technatomy Corp., B-405130. GAO denied the agency’s motion to dismiss a civilian agency task order protest based on the expanded jurisdiction over orders in excess of $10 million. In doing so, it found that, upon expiration of the sunset provision, the entire amended FASA subsection dealing with limits on GAO’s task order protest jurisdiction was nullified. Accordingly, GAO held that its civilian agency task order protest jurisdiction reverted to pre-FASA status, meaning expansive jurisdiction without any distinction between protests of contract awards and task orders.
On July 5, 2011, an interim rule amending FAR 16.505 [PDF] was issued implementing the 2011 NDAA’s extension of the sunset provision for limited DoD task order protest jurisdiction. The commentary published in the Federal Register provides that because there was no corresponding extension of the limitations on GAO’s civilian agency task order protest jurisdiction, “contractors will no longer be able to protest task or delivery orders awarded by agencies other than DoD, NASA, and the Coast Guard.” This comment indicates disagreement with GAO’s current interpretation, but it does not alter the scope of GAO’s jurisdiction under applicable law or regulations.
As it stands right now, GAO has determined that it has broader jurisdiction over civilian agency task order protests than it does over DoD task order protests, since the 2011 NDAA extended the limited jurisdiction for DoD. It remains to be seen whether Congress will take any action in response to GAO’s statements in Technatomy Corp. to clarify the intended scope of GAO’s civilian agency task order protest jurisdiction.
[Editor’s Note: Our discussion of the Court of Federal Claims decision in Med Trends, Inc. v. United States, No. 11-420 (Fed. Cl. Sept. 13, 2011) [pdf] is available here.]