The Federal Acquisition Regulation Council appears in a July 5 interim rule to dispute the Government Accountability Office's assertion of authority to hear indefinite delivery, indefinite quantity orders made from civilian contract vehicles.

The rule mostly just implements the fiscal 2011 national defense authorization act, which extended into 2016--for the Department of Defense, NASA and the Coast Guard, alone--the sunset clause of a 2008 law that gave the GAO bid protest authority to IDIQ orders worth more than $10 million through May 27.

Under the interim rule, which was effective immediately, companies can protest IDIQ task orders worth more than the threshold made at contract vehicles managed by those agencies through Sept. 30, 2016.

With expiration of the 2008 law's authority over Title 41 agencies--e.g., most of the civilian government--most observers expected the previous status quo to reassert itself, under which the GAO could consider task order protests only on the restricted grounds that an order increases the scope, period or maximum value of the contract. Such protests tend to fail since IDIQs are written to be broad in scope.

Instead, the GAO ruled in a June 14 bid protest decision that it now has authority to hear IDIQ protests made under Title 41 contracts at any dollar level--the exact reason why having to do with the way the 2008 law was written.

However, in the background discussion section of the July 5 rule, the FAR Council asserts that "there has been no comparable change to Title 41, so the sunset date for protests against the award of task and delivery orders by other agencies remains May 27, 2011."

Whether or not that assertion is truly an indication that Title 41 agencies disagree with the GAO's interpretation of its authority to hear IDIQ bid protests is debatable, said Ralph White, GAO managing associate general counsel, in an interview.

Rule writing isn't an overnight process, meaning that the background discussion could have been written before the GAO issued its June 14 decision. And the rule correctly notes that Title 41 has indeed gone unmodified, White added.

The proof of whether the Title 41 agencies have decided to contest the June 14 decision will be shown by the level of agency participation in the IDIQ protest process, White said. So far, agencies have cooperated, even to the extent that the FBI accepted GAO direction in an IDIQ bid protest filed over an order worth less than $10 million, White said.

"So far, the executive branch seems to be agreeing that we have jurisdiction. They're certainly participating in the cases," he added.

For more:
- download the interim rule, FAR Case 2011-015 (.pdf)

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