So, the government buys something but you don’t like the way it did it. GAO bid protest time, right? Maybe.
But you first have to ask, what is GAO’s jurisdiction? It can be surprisingly complicated, as a recent protester found out the hard way.
My colleague, Ian Patterson, mentioned in this space not too long ago that GAO didn’t have jurisdiction to hear protests regarding the U.S. Postal Service. That means if you are reading this hoping to learn how to object to the appearance of the new Postal Service vehicle, which is ostensibly a truck but looks more like a shoe, sorry, you’re out of luck.
Bid protests date back a long time. We probably don’t need an in-depth history lesson right now. For one thing, it’ll only interest me. For another, all you need to know now is that modern GAO bid protest jurisdiction stems from the Competition in Contracting Act of 1984. The Act gives GAO authority to decide bid protests regarding acquisitions by federal agencies—defined as “an executive agency or an establishment in the legislative or judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the Capitol, and any activities under the direction of the Architect of the Capitol).”
While that definition is pretty broad, it doesn’t cover every governmental body, even those directly within the executive branch.
For example, the question that presented itself to GAO in Argus Secure Technology, LLC, was whether the Office of Administration, part of the Executive Office of the President, was an “executive agency” as defined by the CICA and therefore within GAO’s bid protest jurisdiction.
The Executive Office of the President (“EOP”) is an office that supports the president, as you might imagine. It includes a number of sub-organizations from the Office of Management and Budget, to the Executive Residence, to the Office of the Vice President. The Office of Administration, the subject of the protest, provides administrative support to the President—among other things.
Apparently one of those other things is to procure cybersecurity services. In the Argus case, the office awarded a blanket purchase agreement to GCyber, LLC, for cybersecurity support. Argus, a competitor, protested.
The EOP responded and argued, as did GCyber, that GAO had no jurisdiction to decide the protest. GAO asked the parties to brief the matter and eventually concluded that the Office of Administration is not an executive agency because it is not an “independent” department of the executive branch.
This wasn’t a cursory review. GAO analyzed the Office of Administration’s enabling statute, compared it to other federal entities that it had already determined were not executive agencies such as the Federal Home Loan Mortgage Corporation (“Freddie Mac”) and the Federal National Mortgage Association (“Fannie Mae”) and those that it had (the Consumer Financial Protection Board), and looked at how courts had treated the office in Freedom of Information Act (“FOIA”) cases. GAO even dug into a 1980 Supreme Court case where the Reporters Committee for Freedom of the Press sued Henry Kissinger for documents.
GAO therefore dismissed the protest.
Because the U.S. Court of Federal Claims’ jurisdiction is likewise over “federal agencies,” this ruling means that unhappy offerors on similar procurements may not have an independent body they can go to to challenge the decision.