Government’s motion to dismiss a protest of a task order for lack of jurisdiction is granted where the protest is prohibited by the Federal Acquisition and Streamlining Act’s (FASA) jurisdictional bar. FASA bars COFC from hearing protests of task orders. The protester here argued that it was not protesting a task order but rather the modification of a task order, but the court found this distinction irrelevant, concluding that the modification itself was effectively a task order. And even if the modification was not task order, FASA precludes the court from considering protests made in connection with a task order. Given that the protest concerned the modification of a task order, it was clearly connected to a task order.
Akira Technologies, Inc. and Chags Health Information Technology, LLC (C-HIT) were both contractors under an IDIQ contract to update the Center for Medicare and Medicaid’s (CMS) cloud computing system. CMS awarded C-HIT a task order under the IDIQ to maintain CMS’s old platform until it was moved to a new platform. CMS then awarded another task order under the IDIQ to Akira to migrate applications from the old platform to the new platform.
After a year of performance, CMS elected not to exercise the option years on Akira’s task order. Instead, CMS decided to modify C-HIT’s maintenance task order to add the migration tasks that Akira had been performing. CMS issued a Justification and Approval to explain why it had decided to award the migration task to C-HIT without an open competition.
Akira filed a protest with the Court of Federal Claims, challenging the sole-source award to C-HIT. The government moved to dismiss, claiming that Akira’s protest was barred by the Federal Acquisition and Streamlining Act of 1994. Under FASA, the COFC does not have jurisdiction to hear protests of task orders unless the protest alleges that the task order exceeds the scope of the IDIQ.
Akira argued that while FASA bars review of a task order, it was seeking review of a task order modification, not a task order. But the court found that the FASA jurisdictional bar also applies to a modification of a task order.
The FAR, the court reasoned, does not distinguish between task orders and modifications of task orders. The FAR applies to “orders” generally. Here, CMS, through modification, “ordered” additional services within the scope of an IDIQ contract. That CMS did this by issuing a task order modification rather than a task order was a distinction without a difference.
Indeed, the court continued, even if a modification was not a “task order,” FASA, by its own terms, applies to protests “in connection” with a task order. It was clear that the modification related to C-HIT’s maintenance task order. As a matter of fact, CMS elected to sole source the migration work to C-HIT specifically because the work related to the company’s task order.
Akira is represented by Christopher R. Shipplett. The intervenor, C-HIT is represented by David B. Dixon and Robert C. Starling. The government is represented by Daniel K. Greene, Joseph H. Hunt, Robert E. Kirschman, Jr. and Douglas K. Mickle of the U.S. Department of Justice as well as Robyn Littman of the U.S. Department of Health and Human Services.
