History has proven since enactment of the Competition in Contracting Act ("CICA") that bid protests are one of the most powerful legal tools in a contractor's toolbox, allowing aggrieved offerors to police federal agencies to ensure fairness and honest dealing throughout the solicitation and award process. The mere specter of being brought before the Government Accountability Office ("GAO") or the U.S. Court of Federal Claims ("COFC") provides a powerful incentive for agencies to respect the procurement process. Although the COFC and U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") (collectively the "Courts") have expanded the scope of agency actions and decisions that can be subject to protest jurisdiction under the Tucker Act, in select recent decisions, the Courts have taken steps to limit—rather than expand—the Courts' jurisdiction.
On September 15, 2014, in SRA International, Inc. v. United States, 766 F.3d 1409 (Fed. Cir. 2014), the Federal Circuit determined that the COFC did not have jurisdiction over a task order protest involving an organizational conflict of interest ("OCI"). The Court vacated the COFC's decision sustaining a bid protest that sought to void a task order award because of an improper OCI waiver by the agency. Relying on the Federal Circuit's decision in Distributed Solutions (a decision in which the Federal Circuit held that the COFC had jurisdiction over a protest challenging an agency's decision to procure software through an existing task order rather than conducting a new competition) the protester argued and the COFC agreed that the protest was not subject to the Federal Acquisition Streamlining Act's ("FASA") limits on protest jurisdiction for task order awards. The Federal Circuit, however, rejected that argument in sweeping language, concluding that FASA "effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order—perhaps even in the event of an agency's egregious or even criminal, conduct." At the same time, the court acknowledged that there are protest scenarios involving task orders where jurisdiction may lie. At a minimum, the SRA decision has narrowed the scope of task order-related protests over which COFC will accept jurisdiction, but it has not cut off such jurisdiction outright.
One month later, on October 21, 2014, the COFC, in VFA, Inc. v. United States, No. 14-173C, 2014 WL 5462563 (Fed. Cir. Oct. 29, 2014), followed the Federal Circuit's lead in further narrowing the jurisdictional reach of Distributed Solutions, dismissing a protest of the Department of Defense's ("DOD") decision to standardize the use of DOD-owned facilities assessment software across all military installations. In its protest, the aggrieved offeror, a facilities assessment software provider, argued that the DOD's standardization decision precluded the protester, and others, from competing for contracts to provide facilities assessment software and that the decision to standardize, absent competition, violated CICA. The COFC dismissed the protest, concerned that entertaining such a protest "where no procurement or cost comparison process was mandated or undertaken [such as the required cost comparison process when insourcing services], would so broadly expand this Court's jurisdiction as to eliminate any restrictions of the Tucker Act." The COFC distinguished the VFA scenario from other standardization and in-sourcing cases in which the Court exercised jurisdiction, so there is reason to argue in future protests that the jurisdictional implication of the VFA ruling is limited to the facts of that case.
At a minimum and going forward, IDIQ contractors will have to examine much more closely the COFC jurisdictional question when considering whether to lodge a protest in that forum in connection with task order awards to its competitors. The SRA and VFA decisions do not affect the jurisdiction of the GAO to entertain task order protests, which is broader than that of COFC. Would-be protesters should also be vigilant regarding the 10-day filing deadline for task order awards at GAO.
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