Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively

by Bass, Berry & Sims PLC
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Bass, Berry & Sims PLC

As we previously reported here and here, between October 1 and December 14, 2016, the Government Accountability Office (GAO) lacked jurisdiction to hear most civilian agency task order protests (its jurisdiction over protest of Department of Defense (DoD) task order awards was unaffected by the lapse). On December 14, President Obama signed legislation reinstating GAO’s jurisdiction over protests of civilian task orders greater than $10 million.  He subsequently signed the National Defense Authorization Act (NDAA) of 2017, which raised the threshold for DoD task order protests from $10 to $25 million.

In a recent decision resolving two requests for reconsideration, GAO refused to reconsider protests filed during the two-month interval, highlighting that the legislation restoring civilian agency task order jurisdiction does not apply retroactively. In a separate decision, GAO held that it does have jurisdiction over supplemental protests, despite the revised DoD task order threshold, using the date of the initial protest as the benchmark.

The Federal Acquisition Streamlining Act of 1994 granted GAO limited jurisdiction over task order protests that challenged the task order for increasing the scope, period or maximum value of the underlying contract. In 2008, the NDAA extended GAO’s protest jurisdiction to include protests of task order awards over $10 million on other grounds. This provision was originally set to expire in May 2011, but it was extended through September 30, 2016.  The DoD task order jurisdiction was subsequently made permanent but Congress strangely left the civilian task order jurisdiction expiration date – September 30, 2016 – in place.

As a result, on October 1, 2016, GAO’s general civilian task order jurisdiction lapsed. For that reason, GAO dismissed several protests filed between October and before that jurisdiction was restored in December 2016.  See, e.g., Analytic Strategies LLC; Gemini Indus., Inc., B 413758.2, et al., Nov. 28, 2016; HP Enter. Servs., LLC, B-413382.2, Nov. 30, 2016; Wyle Laboratories, Inc., B-413989, Dec. 5, 2016.

Following dismissal of the protests brought by Analytic Strategies, LLC and Gemini Industries, Inc., each filed a request for reconsideration.  Both argued that Congress intended the legislation to apply retroactively, giving GAO jurisdiction during the two-month gap between October 1 and December 14. Analytic Strategies and Gemini Industries cited legislative history from the House Committee on Oversight and Government Reform, identifying that the purpose of the bill would be to eliminate disruption of the protest process and prevent a gap in GAO’s “existing authority to hear protests of civilian task and delivery order contract awards over $10 million.”

Ultimately, GAO found these arguments unconvincing, refusing to read retroactive intent into the statute. In its reasoning, GAO highlighted that legislation without a specific effective date takes effect on the date of its enactment, unless Congress specifies to the contrary. Similarly, retroactive legislative application is generally a disfavored statutory interpretation, unless Congress expressly specifies such intent. With Supreme Court precedent leaning against ex post facto application of newly enacted laws, GAO rejected the protestor’s arguments and refused to reconsider the task order protests.

While Analytic Strategies and Gemini Industries’ requests for reconsideration were unsuccessful, GAO chose not to dismiss Interactive Technology Solutions, LLC’s (ITS) protest for lack of jurisdiction despite the newly implemented $25 million jurisdictional threshold for protests of DoD task orders. ITS filed its initial protest with GAO on November 23, 2016, of a task order award valued above $10 million but below $25 million. Following receipt of the agency report, on January 3, ITS filed a supplemental protest with two additional claims.

Though GAO ultimately denied ITS’s claims, it held that it had jurisdiction over the protest of the task order because it met GAO’s $10 million jurisdictional threshold applicable at the time of initial filing.  GAO further held that it had jurisdiction over the supplemental protest grounds, which were filed after the DoD task order jurisdictional threshold was increased to $25 million, because a supplemental protest was not a new protest, but rather “amends or modifies the initial protest,” which the GAO had jurisdiction to review under the lower, $10 million threshold.

These are likely the last of the protests decisions that will deal with the two month jurisdictional gap and the increase of the jurisdictional threshold for DoD task order awards from $10 million to $25 million.  But in addition to clarifying GAO’s interpretation of the 2017 NDAA, they explain GAO’s general policy toward legislative interpretation and highlight that GAO is reluctant to apply any statute retroactively absent a Congressional statement of such intent. They also clarify that in deciding whether a supplemental protest is timely, GAO will focus on the date of the original protest.  Now that GAO’s jurisdiction to hear protests of both civilian and DoD task order protests is permanent, albeit set at different thresholds, it is unlikely that such lapses will occur again anytime soon.

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