Enacted in 1994, the Federal Acquisition Streamlining Act (FASA) contains a “task order bar” that removes from the coverage of the Tucker Act any protests that relate to the issuance of a task or delivery order, the contract value of which does not meet the monetary threshold of $35 million for defense procurements and $10 million for non-defense procurements. Thus, if the contract value of a task or delivery order falls below these thresholds, the Government Accountability Office (GAO) will not entertain protests challenging the award due to lack of jurisdiction. The general rule for determining contract value for the purposes of establishing protest jurisdiction is to calculate the amount of the task or delivery order award. However, the GAO may, under unique circumstances, look beyond the amount of the award to establish the contract value for the purposes of jurisdiction. Such unique or extraordinary circumstances may include situations where the government utilized unconventional methods for compensating the contractor or employed atypical price evaluation techniques. Absent such unique circumstances, however, the GAO will not look beyond the value of the task or delivery order award to establish bid protest jurisdiction.

Contractors frequently form joint ventures to respond to federal contracts solicitations that require the submission of past performance information. Since joint ventures are entities separate from their member firms, created in many instances to pursue specific federal opportunities, they may not have the necessary past performance history. As a result, joint ventures often rely upon the past performance history of their individual member firms. Meanwhile, procuring agencies are generally permitted to consider the past performance history of individual member firms during evaluation. This is true even when the solicitation expressly limits the use of past performance information to contracts performed as a prime contractor. When responding to such solicitations, joint ventures may utilize the past performance history of their individual member firms, as long as the member firm was a prime contractor on the referenced contract, and the past performance information is reasonably predictive of the quality of the joint venture’s future performance under the contract being awarded. Similarly, if reasonably predictive of performance, joint ventures may use the past performance history of their individual members, even when those members earned it as members of a different joint venture. Contractors should be mindful that while joint ventures can usually submit the past performance history of their member firms, an exception to this general rule is if the solicitation contains an express provision prohibiting the use of such past performance information.

Federal contractors may enter into joint venture agreements to pursue and perform federal contracts and carry out specific business activities. Governed by the terms of the joint venture agreement, joint ventures are independent entities that typically exist separate and apart from their member firms. In the event the joint venture is awarded a government contract, it is this separate entity that is in privity with the government, not its member firms. Similarly, when a joint venture submits a claim and brings an appeal, it must do so in its own capacity. While each member firm possesses the requisite authority to act for or bind the joint venture, the member firms can agree otherwise in the joint venture agreement. In addition to the requirement that the appeal be brought by the contract holder, the person or entity bringing the appeal on behalf of the joint venture must have the necessary authority to do so under the terms of the joint venture agreement. An adjudicative forum’s jurisdiction over an appeal brought by a joint venture may depend entirely upon whether the person or entity bringing the appeal on behalf of the joint venture possesses the necessary authority to do so under the terms of the joint venture agreement.

In order to have the necessary standing to file a protest at the Government Accountability Office (GAO), a protester must qualify as an interested party. The GAO’s bid protest regulations define an interested party as an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. A protester may challenge the procuring agency’s evaluation of the awardee’s proposal as an interested party when there is a reasonable possibility that its proposal would be next in line for award if the protest is sustained. In post-award protests with an intervening offeror between the awardee and the protester, the protester’s economic interest may be considered too remote to qualify as an interested party to raise certain challenges against the awardee’s proposal. This is because when there is an intervening offeror that would be next in line for award should the protester’s protest be sustained, that intervening offeror is deemed to have a greater economic interest in the procurement. To establish standing in such procurements, the protester must challenge the agency’s evaluation of the intervening offeror to either show that it possesses the necessary economic interest to raise the pertinent challenges or otherwise demonstrate that its competitive position is subject to change based on the errors it identifies in the government’s evaluation.