Task orders have become ubiquitous in the federal procurement system. Although the Federal Acquisition Streamlining Act (FASA) gives GAO exclusive jurisdiction over protests of task orders, contractors occasionally seek to challenge task order awards at the CFC. Earlier this year, SRA International survived a motion to dismiss in its challenge to an organizational conflict of interest (OCI) waiver issued with respect to a Federal Deposit Insurance Corporation award of a task order to another contractor/offeror. The trial court held that it had jurisdiction because the waiver was not issued “in connection with” the task order and then proceeded to dismiss the case on other grounds. Earlier this week, the Federal Circuit disagreed—and made clear that FASA’s “in connection with” language does not provide a backdoor into the CFC.
The procedural history of SRA International starts at GAO, where SRA protested the award of the task order and argued that the award was tainted by two OCIs related to the awardee’s proposed subcontractor. In response, the awardee agreed to drop the subcontractor (which addressed one of the OCI’s), and the agency issued an OCI waiver under FAR 9.503 with respect to the other OCI. GAO dismissed the protest as academic, and SRA filed a protest at the CFC. SRA claimed that the OCI waiver was void because the agency failed to satisfy the relevant agency regulations. The Government moved to dismiss, arguing that FASA precluded jurisdiction over a protest in connection with the issuance of a task order.
The CFC held that FASA did not bar jurisdiction because (i) the waiver was temporally and causally disconnected from the award of the task order—it was issued 102 days after award—and (ii) it was a discretionary act. Agreeing with the plaintiff’s assertions, the court held that the waiver was not “issued in connection with” the task order and thus was outside the FASA bar. The CFC also took the unusual step of requesting an advisory opinion regarding the propriety of the FDIC’s OCI waiver from GAO, which complied with the request and advised that the waiver was not arbitrary or capricious. GAO also stated that if the agency had not issued the waiver, GAO would have found SRA’s protest untimely. Based on GAO’s advisory opinion, the CFC held that SRA’s claims were moot and dismissed the case.
On appeal, the Federal Circuit rejected the notion that the waiver was not issued in connection with the task order:
The statutory language of FASA is clear and gives the court no room to exercise jurisdiction over claims made “in connection with the issuance or proposed issuance of a task or delivery order.” Even if the protester points to an alleged violation of statute or regulation, as SRA does here, the court still has no jurisdiction to hear the case if the protest is in connection with the issuance of a task order.
The Federal Circuit emphasized that Congress’ intent to ban protests of task orders at the CFC was unambiguous in FASA and the amendments enacted since 1994.
The Federal Circuit’s SRA decision sends the clear message that the appeals court sees no place for task order protests at the CFC. This is one area in which protesters cannot go to the court for a second bite at the apple after losing at GAO.