In May 2011, the sunset provision in 41 U.S.C. 4106(f), which gave the U.S. Government Accountability Office exclusive protest jurisdiction over some task and delivery orders expired. Since then, several authorities have spoken, sometimes contradictorily, regarding the effect of that expiration. Both the U.S. Court of Federal Claims and the GAO seem to have adopted the position that their jurisdiction over task and delivery orders issued by civilian agencies is now unlimited.

Previously the GAO had some jurisdiction to hear task and delivery order protests; the Court of Federal Claims did not. However, a recent Federal Acquisition Regulation Council interim rule states that the GAO has no authority over any task or delivery orders issued by civilian agencies. This is as close to the Wild West as it gets in government contracts; nobody knows for sure whether task and delivery order awards are protestable and, if so, by whom.

The past several months have brought several revelations for would-be protesters of task or delivery orders (“task orders”) issued under Indefinite Delivery/Indefinite Quantity contracts. The result is an amazing lack of clarity as to whom, if anyone, has jurisdiction to hear these protests. The first surprise came on June 14, 2011, when the GAO found that, as a result of a sunset provision in the law limiting its bid protest jurisdiction over task orders, it now has unlimited jurisdiction over such protests. As the GAO’s position is that it was the limitation on its jurisdiction (rather than its jurisdiction itself) that expired.[1]

The second voice to address this issue came on July 5, 2011, when the FAR Council issued an interim rule, effective immediately, which addressed the GAO’s ability to hear protests of task orders.[2] That rule reflects Congress’ extension through Sept. 30, 2016, of the limitation on the GAO’s jurisdiction over protests of awards made by the the U.S. Department of Defense, NASA or the Coast Guard to only those task orders that expanded the scope, period, or maximum value of a contract, or exceed $10 million.

The FAR rule also acknowledges that Congress did not extend the provision to cover task orders issued by civilian agencies. Because of this, the interim rule states that the GAO has no jurisdiction whatsoever over civilian agency-issued task orders. Presumably this rule is a result of the FAR Council’s slow decision-making process. Nevertheless, on its face, it contradicts the GAO’s interpretation of its task order jurisdiction, issued only days earlier.

Not to be left out of the fray, the United States Court of Federal Claims published an opinion on Sept. 13, 2011, finding that it too has jurisdiction to hear protests of task orders because the sunset provision granting the GAO limited jurisdiction to hear task order protests also contained the grant of exclusive jurisdiction to the GAO. The COFC reasons that when the entire provision expired, so did its grant of task order protest jurisdiction exclusively to the GAO.

The COFC acknowledged that there was some evidence to indicate that Congress had not intended to eliminate the exclusivity of the GAO’s jurisdiction, intending only to eliminate the limitation provision. Yet, it held that the plain language of the sunset provision clearly encompassed the entire subsection, including the exclusivity provision — and it’s now gone.

As things stand today, according to the FAR Council’s interim regulation, if a task order is issued by the DOD, NASA or the Coast Guard, the GAO is the exclusive forum for a protest that challenges whether the task order expanded the scope, period, or maximum value of a contract or are valued over $10 million. This jurisdiction is extended through Sept. 30, 2016.

Protests of civilian agency task orders, on the other hand, present some potentially complicating issues. According to the recent GAO and COFC decisions, a task order issued by a civilian agency could be brought before either of those forums under the same circumstances as any other bid protest. However, an agency wishing to challenge the GAO’s jurisdiction over such a protest would no doubt raise the issue of the interim rule stating that the GAO had no such jurisdiction.

For the government to succeed, the GAO will have to reverse itself, or the government will have to grapple with how and where to appeal should it lose a task order protest at the GAO. If a protest of civilian agency task orders was filed in the COFC, the government will still challenge the court’s jurisdiction but the basis for such a challenge is less clear. The FAR Council interim rule is silent on the COFC jurisdiction because the previous sunset provision had conveyed exclusive jurisdiction for such protests with the GAO. In the absence of such statutory exclusivity, the COFC clearly believes it has jurisdiction.

In the past, such dilemmas were solved through legislation. And, it appears that a bill trying to accomplish this passed the Senate on May 12, 2011; its house companion bill was introduced in March 2011 and has gone no further. Who knows, this may be one of those few issues on which Democrats and Republicans alike can agree. If not, then a legislation solution will not be forthcoming, at least not immediately. The FAR Council accepted comments on its interim rule through Sept. 6, 2011. However, in light of the flurry of recent judicial decisions, it is unclear whether the FAR Council will act quickly or stall in hopes that Congress takes action to resolve the uncertainties.

Right now, however, the only thing that is certain is that there are now two forums in which task order awards can be protested, and no one at the government is happy about this.

[1] See “GAO Protest Jurisdiction — Ending Or Expanding?” July 6, 2011, discussing the GAO’s ruling in Technatomy, B-405130, June 14, 2011.

[2] See 76 Fed. Reg. 39,232 (July 5, 20011).

This article was originally published on Law360, September 22, 2011.