Timing is Everything – GAO Refuses to Apply Jurisdiction Retroactively

by Bass, Berry & Sims PLC

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.

Written by:

Bass, Berry & Sims PLC

Bass, Berry & Sims PLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.