When considering where to file a bid protest, you have options at the agency level, Government Accountability Office, and Court of Federal Claims. But not all options are available for protests of task and delivery order awards. The Court of Federal Claims recently reminded a protester that it lacks jurisdiction over task and delivery orders, even where an agency is proposing to bundle multiple separate contracts into one task order.
InSap Services, Inc. had been performing the IT services under four separate contracts. The Army bundled the services from these four contracts into a single task order under the CIO-SP3 multiple-award contract. But InSap did not hold a CIO-SP3 contract.
At GAO, InSap protested the decision by the Army to bundle the four IT service contracts under one task order. InSap argued the bundling of services was not lawfully justified. GAO considered the arguments, but denied the protest on the merits.
Then InSap challenged the decision at the Court of Federal Claims, as recounted in the court’s recent decision.
The Army moved to dismiss for lack of jurisdiction, arguing that federal law says only GAO can consider bid protests of task or delivery orders. More specifically, the Federal Acquisition Streamlining Act states that “the Comptroller General shall have exclusive jurisdiction” of a protest “in connection with the issuance or proposed issuance of a task or delivery order.” Other than protests that an order “increases the scope, period, or maximum value of the contract under which the order is issued,” only the Comptroller General (through GAO)–but not the court–can consider bid protests of orders.
Seems like a pretty easy case, but InSap got creative in arguing that there was jurisdiction. It maintained that its bid protest did not challenge the solicitation that created the order. Rather, it was “challenging the conditions antecedent to the solicitation.” The decision to bundle the services was made prior to issuance of the task order solicitation, so it was not “in connection with” a task order under the rule limiting those protests to GAO.
Unfortunately for InSap, the court didn’t agree. The court noted that whether a protest is “in connection with the issuance or proposed issuance of a task or delivery order” under the rule is not defined in the statue. But the Federal Circuit appellate court has interpreted the ban on federal courts hearing order protests very broadly. The protested action by an agency can come before or after award and it can be a discretionary action by any agency. Either way, only GAO can hear the protest.
The court concluded that allowing “a protest to be heard at this Court after already being heard by GAO would burden the Government and negate Congress’s intent to streamline.” Therefore, “the Army’s discretionary decision to bundle the services prior to the task order solicitation is in connection with the task order” and only GAO can consider the protest.
This decision reinforces the rule that only GAO can consider protests of tasks or delivery orders, or any actions connection to those orders. It seems even a creative attorney cannot get around this restriction. And remember, even at GAO an order must be over $10 million for civilian agencies and over $25 million for military agencies before GAO can hear the protest.
While this could create an incentive for agencies to funnel more acquisition actions into task orders to lower the risks of protests, that appears to be the intent of Congress. For protesters, GAO is the only shot so they better make it count.