Jurisdiction over Challenges to 'Large' Orders Under Federal Contracts [October 12, 2011] [open pdf - 281KB]
From the Document: "This report provides an overview and discussion of two recent decisions by the Government Accountability Office (GAO) and the U.S. Court of Federal Claims finding that they have jurisdiction over protests challenging the issuance of task and delivery orders of any size under civilian agency contracts, even if these orders do not increase the scope, period, or maximum value of the underlying contract. Prior to these decisions, executive branch agencies and many commentators had construed the Federal Acquisition Streamlining Act (FASA) of 1994, as amended by the National Defense Authorization Act (NDAA) for FY2008, as authorizing only protests concerning the issuance of orders under civilian agency contracts that (1) increase the scope, period, or maximum value of the underlying contract or (2) are valued in excess of $10 million, as well as granting GAO temporary exclusive jurisdiction over protests involving the latter. However, GAO and the court rejected this interpretation, finding that what expired on May 27, 2011, were limitations on their jurisdiction imposed by FASA, as amended by the NDAA for FY2008. Thus, they concluded that they and, potentially, procuring agencies have jurisdiction over protests of orders of any size issued under the contracts of civilian agencies, regardless of whether these orders increase the scope, period, or maximum value of the underlying contract. These decisions arguably will result in protests of orders under civilian agency contracts being treated differently from protests of similar orders under defense contracts, and also could increase the number of bid protests. In addition, the Federal Acquisition Regulation was amended on July 5, 2011, in a manner that could prompt questions, on the basis that it could be construed to mean that no protests of orders under civilian agency contracts are authorized after May 27, 2011."
CRS Report for Congress, R42049