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Contractors Must Identify Correct Forum to Bring Protest

by | Nov 20, 2019 | Government Contracts

It is not always easy to figure out where a protest should be filed. Although the Government Accountability Office (“GAO”) and the U.S. Court of Federal Claims (“COFC”) both handle protests, each has slightly different protest jurisdiction as a protester recently learned.      

Akira Technologies, Inc. (“Akira”) and Chags Health Information Technology, LLC (“C-HIT”) were performing FAR Part 16 task orders under their contracts for identity management systems and migration from the Center for Medicare & Medicaid Services (“CMS”). C-HIT’s task order was for maintenance of CMS’ old platform, while Akira was issued a task order to migrate CMS’ applications to a new platform. When CMS wanted more help migrating to the new platform, it could have competed a new task order among contract holders including C-HIT and Akira. Instead, CMS wrote a Justification and Approval (J&A) for modifying C-HIT’s task order and gave C-HIT the work. Not only did Akira not have a chance to compete for the work, because CMS did not exercise the option on Akira’s task order, Akira’s task order ended.

Akira protested CMS’ modification of C-HIT’s task order to the COFC. The Court, however, never addressed the merits of Akira’s protest because the Court dismissed the protest for lack of jurisdiction. According to The Federal Acquisition and Streamlining Act of 1994 (“FASA”), the court did not have jurisdiction over protests of FAR Part 16 task orders except for a protest that the task order was beyond the scope, the period of performance, or maximum value of the underlying contract. Here, Akira argued that it was not protesting a review of a task order, but instead was seeking review of a task order modification which FASA did not deal with. The Court, however, found Akira’s distinction between a task order and a task order modification to be a distinction “without a difference” and dismissed the protest. Akira Technologies, Inc. v. United States, 145 Fed.Cl. 101 (2019).

Because a protest can take up so much of a contractor’s time and effort, a contractor must be careful to file the protest at the correct forum. Identifying the correct forum can be difficult because over time Congress has changed the protest jurisdiction of GAO and the COFC. Berenzweig Leonard can help contractors make sure their protest gets filed in the correct forum. 

Berenzweig Leonard  is teaming up with  Red Team Consulting  for a monthly newsletter featuring reports on recent contract decisions, recent upcoming contracts, key protest decisions, events, and more. This post was published in the November 2019 newsletter. To sign up for our govcon newsletters, please email [email protected].

Daniel Alvarado is an Associate in the Government Contracts practice at Berenzweig Leonard. Daniel can be reached [email protected]