Government Contracts Article – Week of February 3, 2020

Case Summary: COFC Protests Concerning Issuance of Task Order Modifications May Create a Jurisdictional Bar Under FASA

The Case: Akira Technologies, Inc. v. United States, COFC No. 19-1160C (Fed. Cl. Oct. 10, 2019).

Background: The U.S. Centers for Medicare & Medicaid Services (“CMS”) issued an IDIQ contract and awarded task orders to Akira and another vendor. CMS modified the task order awarded to the second vendor to include work that Akira had been performing.

Akira protested, arguing CMS should have competed the modification. The government moved to dismiss for lack of subject matter jurisdiction contending the Federal Acquisition Streamlining Act of 1994 (“FASA”) barred the protest.

Under FASA, the COFC cannot hear protests “in connection with the issuance or proposed issuance of a task or delivery order except for . . . a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.”

Outcome: Akira’s protest was dismissed. The Court concluded that modification of a task order directly connected to an already issued task order that “does not otherwise increase the scope, period or the maximum amount of the IDIQ contract is a protest ‘in connection with the issuance of a task order'” and thereby barred under FASA.

Lesson For Contractors: The Court expanded the jurisdictional bar of FASA to include modifications of task orders. Accordingly, prior to filing a protest at the COFC based on a task order modification, ensure you have facts to support an argument that the modification impacted the scope, period, or maximum amount of the contract against which the order was issued.

 

Attorney Kristi Morgan AronicaOur government contracts briefs, reports, and articles are published by Attorney Kristi Morgan Aronica. She serves as counsel to government contractors and subcontractors throughout Texas and nationally.