Who's In Charge? The GAO, the FAR Council, and Jurisdiction Over Task Order Bid Protests

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We’ve previously complained about the FAR Council’s tendency to take too much time to issue rules that entail consideration of complex subject matter, as indicated, for example, by the 13 years during which the Council dallied before issuing final rules for commercial off the shelf items, discussed here. Recent events suggest, however, that there may be good reason for the Council’s dilatory behavior because, as it turns out, when the Council does move quickly in response, say, to a legislative change, it tends to come up with the wrong answer.

On July 5, 2011 the Council issued an interim rule addressing GAO’s jurisdiction to hear defense and civilian agency protests against award of task or delivery orders in light of FY 2011 National Defense Authorization Act provision extending GAO’s jurisdiction to hear protests against the award of task orders by DoD or NASA to September 30, 2016, with the limitation that the orders must exceed $10 million in value or expand the scope, period, or maximum value of a contract. See 76 Fed. Reg. 39,232 (July 5, 2011). The interim rule specifies the GAO’s jurisdiction to hear such protests but, noting that Congress didn’t get around to extending the same authority to GAO vis-à-vis task orders issued by civilian agencies, also indicates that GAO has no jurisdiction to do so.

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