Back on November 28, 2016, both Analytic Strategies LLC and Gemini Industries, Inc.’s protests were dismissed by the GAO for lack of jurisdiction. The firms initially protested the General Services Administration’s (GSA) exclusion of their proposals under a task order to provide mission support services for the Joint Improvised-Threat Defeat Agency (JIDA). The protests were subsequently dismissed by the GAO as its statutory grant of jurisdiction to consider such protests had expired. Congress subsequently reinstated the GAO’s jurisdiction and, as such, the contractors requested that their initial protests be reinstated.
By way of background, in 1994, Congress enacted the Federal Acquisition Streamlining Act (FASA) which, in part, established a general bar against protests filed in connection with military and civilian agency task and delivery orders issued under multiple award IDIQ contracts, with limited exceptions. However, the National Defense Authorization Act (NDAA) for Fiscal Year 2008 amended FASA to grant GAO jurisdiction to hear protests in connection with orders placed under IDIQ contracts where the order exceeded $10 million. The Fiscal Year 2012 NDAA amended the GAO’s jurisdiction and established a sunset date whereby the grant of jurisdiction to hear protests in connection with orders placed under IDIQs valued in excess of $10 million expired after September 30, 2016. On December 14, 2016, the Protest Authority Act was signed into law, which removed the sunset provision and reinstated GAO’s jurisdiction over protests of task orders placed under civilian agency IDIQ contracts valued in excess of $10 million.
With specific relevance to this protest, on April 20, 2016, GSA issued a task order request (TOR) to contractors under a specific IDIQ, including Analytic Strategies and Gemini Industries. The solicitation estimated the total value of the cost-plus-award-fee portion of the task order to be between $126,081,247 and $132,717,104. On September 21 and October 18, 2016, GSA informed Analytic Strategies and Gemini Industries, respectively, that it would no longer consider their responses to the TOR for award. Analytic Strategies filed its protest on October 3, and Gemini Industries filed its protest on October 28. Approximately one month later, GSA dismissed the protests as its jurisdiction to consider these protests had expired on September 30. The contractors subsequently filed requests for reconsideration once the GAO’s jurisdiction was reinstated.
In denying the reconsideration request, the GAO noted that it has repeatedly determined that its authority to hear a protest, including its jurisdiction to hear task and delivery order protests, is based on the filing date of the protest. The GAO, in finding that it did not possess jurisdiction at the time the protests were filed, noted that merely because the Protest Authority Act removed the sunset provision did not change the fact that the sunset provision did previously exist. The Act contained no statement as to its effective date, thus it is deemed to take effect on the date of its enactment. Furthermore, the GAO noted that retroactive application of a law is disfavored and should not be done in this case.
For more information, read the GAO decision in Analytic Strategies LLC; Gemini Industries, Inc. – Reconsideration; B-413758.4; B-413758.5 (Mar. 8, 2017).
About the Author:
Heather Mims is an associate attorney at Centre Law & Consulting. Her practice is primarily focused on government contracts law, employment law, and litigation. Heather graduated magna cum laude from the George Mason School of Law where she was the Senior Research Editor for the Law Review and a Writing Fellow.