Shapiro, Lifschitz & Schram

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GOVERNMENT CONTRACTORS MAY PROTEST ALL CIVILIAN AGENCY TASK OR DELIVERY ORDERS AT THE GAO

The Government Accountability Office (GAO) has recently opened the door for federal-government contractors to protest civilian agency task or delivery orders at the GAO regardless of the order's value. See Technatomy Corp., B-405130.

Previously, contractors could not protest task or delivery orders of any value at the GAO. In 1994, Congress enacted the Federal Acquisition Streamlining Act ("FASA") that barred all protests at the GAO unless the contractor alleged that an order increased the underlying contract's scope, period, or maximum value. In 2008, Congress passed the National Defense Authorization Act ("NDAA") that modified the FASA bar on task/delivery protests and expanded the GAO's jurisdiction to include protests valued over $10,000,000. See 41 U.S.C. §253j(e)(2). The NDAA, however, included a three-year sunset provision that ran in May 2011. See 41 U.S.C. §253j(e)(3).

In May 2011, Technatomy Corporation (Fairfax, Virginia) protested the award of a task order issued by the DISA (Defense Information Systems Agency) under a GSA contract. In response, DISA moved to dismiss the protest because it argued that the NDAA's sunset provision removed the GAO's jurisdiction to hear the protest.

In a June 14th decision, the GAO disagreed with DISA and ruled that it can decide protests regarding task and delivery orders regardless of dollar amount. In other words, the GAO ruled that it still has jurisdiction over protects of all amounts despite the fact that the very act that had given it that jurisdiction had expired. The GAO reasoned that the sunset provision had replaced the FASA. The GAO further reasoned that once the sunset provision's expiration paved the way for the jurisdiction it had before 1994 when it could hear protests without any monetary limitations at all. In other words, the GAO concluded that its jurisdiction reverted to its original jurisdiction (as set forth in the Competition in Contracting Act of 1984) to hear protests challenging any task or delivery orders.

The GAO's decision surprised many in the federal-contracting community who reasonably believed that the GAO's authority to consider protests regarding civilian task and delivery order protests over $10 million had expired in May 2011. But it appears that this door will soon by closed as there is currently pending legislation to extend the effective date of the sunset provision. But until Congress enacts that legislation, the GAO will continue to consider protests of task and delivery orders awarded by civilian agencies without monetary limitations.

 

Did You Know . . .

Members of the SLS trial group have tried in excess of 50 jury trials and 75 bench trials?

The SLS construction group has worked on sports stadiums across the country including Orioles Park in Baltimore and Paul Brown Stadium in Cincinnati?

The SLS construction group has worked on power plant projects across the country?

In 2007 SLS was selected for an Honorable Mention as one of the Best Places To Work in Washington DC?

Ron Shapiro, Steve Schram and Judd Lifschitz have all been selected as SuperLawyers by Law and Politics?

The SLS office building is an historic townhouse constructed in the late 1800s?

SLS has been selected by Martindale-Hubbell as a Preeminent Law Firm?

SLS trial lawyers have argued appeals in the U.S. Circuit Courts of Appeal for the 4th, 5th, 9th, D.C. and Federal Circuit?

SLS trial lawyers have been lead trial counsel in cases in Arizona, California, District of Columbia, Florida, Louisiana, Maryland, New Jersey, New York, North Carolina, Oregon, Texas, and Virginia, - to name just a few?

Virtually all the cases that SLS trial lawyers mediated have been favorably settled at mediation?

The transactional group at SLS was lead counsel on one of the largest, most complex mixed-use projects in downtown Washington, DC involving 4 lenders and 6 property owners?

In appreciation for the outstanding efforts of each of its employees during 2007, SLS gave everyone (attorneys, paralegals, and staff) a 4 day/3 night expense paid trip to Key West, Florida?

The transactional group at SLS has represented tenants in more than 200 retail leases in the Mid-Atlantic region?

Every attorney in the transactional group at SLS has at least 15 years experience?

The transactional group at SLS has represented developers in the purchase, construction, financing and/or sale of more than 75 multi-family apartment projects?

The transactional group at SLS has represented real estate investors and developers with respect to property in Pennsylvania, West Virginia, Delaware, Maryland, the District of Columbia, Virginia, North Carolina, South Carolina, Georgia, Florida, Texas, Tennessee, Michigan and the U.S. Virginia Islands?

Attorneys in the transactional group at SLS have represented eight national banks in commercial real estate loans?

Attorneys in the transactional group at SLS have represented the FDIC, the Resolution Trust Corporation and several banking institutions in loan workout transactions throughout the Mid-Atlantic region?

The transactional group at SLS has represented homebuilders and commercial real estate developers in work-outs of individual loans and also for work-outs of large portfolios involving dozens of properties in several states?

The trial lawyers of SLS have numerous reported decisions to their credit?