Federal Circuit Decision Reins In COFC’s Ability To Decide Task Order-Related Protests

Last week, the Federal Circuit issued an opinion that may curtail the Court of Federal Claims’ jurisdiction to decide task order-related bid protests under the Federal Acquisition Streamlining Act of 1994 (“FASA”).  FASA is generally regarded as permitting only two types of task order bid protests: (1) protests alleging that a task order award is “out-of-scope;” and (2) protests of task order awards exceeding $10 million at the Government Accountability Office.  See 41 U.S.C. § 4106(f).  Despite this limitation, several Court of Federal Claims decisions in recent years have asserted jurisdiction over bid protests challenging agency actions taken before or after the issuance of a task order.  The decision in SRA Int’l v. United States, No. 2014-5050, 2014 WL 4494775 (Fed. Cir. Sept. 15, 2014), however, signals the Federal Circuit’s skepticism towards the view that FASA does not bar such protests, finding instead that the timing of an agency action does not, in itself, affect whether FASA’s restriction applies, and that the statute “effectively eliminates all judicial review for protests made in connection with a procurement designated as a task order.”  Id. at *4.

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