Pillsbury Winthrop Shaw Pittman

Task order protests: the trek toward clarity on the Court of Federal Claims’ jurisdiction

By C Joël Van Over and Alexander Ginsberg

The US Court of Federal Claims’ 18 July 2014 decision in Orbis Sibro Inc v United States represents one of the few straightforward decisions by the court in recent months relating to the court’s subject matter jurisdiction over protests of task or delivery order procurements. The court easily dismissed the plaintiff’s complaint in that case for lack of jurisdiction, citing the general statutory prohibition on task and delivery order protests described below. In several recent decisions preceding Orbis, however, the court has accepted jurisdiction over protests related to task or delivery order procurements, despite the statutory prohibition. For example, earlier this year, in SRA International Inc v United States, 114 Fed. Cl. 247 (2014), the court granted jurisdiction over a bid protest challenging a federal agency’s decision to waive an alleged organisational conflict of interest (OCI) in the context of a task order procurement. SRA and other decisions lay the groundwork for further challenges to adverse award decisions involving task and delivery orders. Orbis, by contrast, signals that the court remains mindful of its jurisdictional limitations. On balance, the law interpreting jurisdiction over task and delivery order protests remains somewhat unsettled.

Beginning in 1994, with the passage of the Federal Acquisition Streamlining Act (FASA), Congress placed statutory limitations on task and delivery order protests before the Government Accountability Office (GAO) and before the Court of Federal Claims — the limitations on the court’s jurisdiction being significantly broader. The Court of Federal Claims lacks jurisdiction over all protests ‘in connection with the issuance or proposed issuance’ of task and delivery orders under Federal Acquisition Regulation Part 16, unless such orders increase the scope, period or maximum value of the underlying prime contract. 41 USC § 4106(f); 10 USC § 2304c(e). GAO has exclusive jurisdiction over task and delivery order protests under FASA, but its jurisdiction is limited to protests in connection with task and delivery orders valued in excess of $10m (£6m) (including option periods). Thus, by statute, a protester would appear to have no recourse to protest a task or delivery order procurement at the Court of Federal Claims (unless the order increases the scope, period or maximum value of the underlying contract)…

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