Alert 01.03.17
Alert
Alert
10.22.19
This article was also published in Westlaw on December 16, 2019, at 2019 WL 6722248.
The Federal Acquisition Streamlining Act of 1994 (FASA) generally bars bid protests at the U.S. Court of Federal Claims (COFC) that are in connection with the issuance of task or delivery orders under Federal Acquisition Regulation (FAR) Part 16 indefinite-delivery, indefinite-quantity (IDIQ) contracts. Specifically, the court lacks jurisdiction to hear protests “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.” (See 41 U.S.C. § 4106(f)(1) and 10 U.S.C. § 2304c(e).)
What it means to be “in connection with the issuance” of such an order has for years been the subject of litigation, as we have detailed in prior alerts. In its recent Akira Technologies, Inc. v. United States et al. decision, the court held that modifications to existing task orders are “in connection with” the issuance of such task orders and, thus, protests of such modifications are barred by FASA.
At issue was the government’s modification of a task order under an IDIQ contract that added work originally awarded to the protester under a different task order. The modification was made after the government decided not to exercise an option period of the protester’s task order. The protester asserted that the work added to the modified task order should have been subject to competition among the IDIQ contract holders.
In response to a motion to dismiss the case for lack of jurisdiction, the protester argued that a modification to an existing task order is not “in connection with” the issuance of that task order. The protester cited the previous decision of a different COFC judge in Global Computer Enters. v. United States, 88 Fed. Cl. 350 (2009), which ostensibly held that task order modifications were not “in connection with the issuance” of a task order and, thus, not subject to FASA’s jurisdictional bar. The court in Akira found the protester’s arguments unpersuasive.
In dismissing the protest for lack of jurisdiction, the court reasoned that the “FAR does not distinguish between new task orders or modifications of task orders,” and that the government’s issuance of a task order modification rather than a new task order “is a distinction without a difference.” The court also expressly distinguished the protester’s allegations from those in Global Computer. In that case, the court reasoned, the task order modification was outside the scope of the underlying IDIQ and, thus, satisfied one of the enumerated exceptions to FASA’s jurisdictional bar. Because the instant protest did not involve an out-of-scope modification to the IDIQ, the court found the protest was barred by FASA.
In sum, this latest decision on COFC task order protest jurisdiction reflects an expansive interpretation of the FASA bar. While the court generally lacks jurisdiction over task order protests, the Government Accountability Office (GAO) possesses such jurisdiction, as long as the task order in question satisfies the applicable dollar threshold. We have discussed the dollar thresholds applicable to GAO task order protests in previous alerts.