As of October 1, the U.S. Government Accountability Office’s (“GAO”) jurisdiction over protests on civilian agency task orders valued at more than $10 million expired, leaving government contractors with limited grounds for protesting such task order awards.
In 1994, the Federal Acquisition Streamlining Act (“FASA”) was enacted in response to concerns that the federal procurement process was too cumbersome and complicated. One of the FASA reforms included a limitation on contractors’ ability to protest the issuance of task order awards, except for a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued. The National Defense Authorization Act (“NDAA”) for fiscal year 2008 amended FASA to give GAO exclusive authority to hear protests of task order awards over $10 million. GAO continues to have jurisdiction over protests of Department of Defense (“DOD”) agency task order awards valued at over $10 million, as Congress made that authority permanent in the 2013 NDAA. However, GAO’s authority to hear protests related to civilian agency task order awards was extended only through September 30, 2016.
Unfortunately, no immediate relief is in sight. The House version of the 2017 NDAA includes a provision that would make GAO’s authority to hear protests of civilian task order awards permanent, in line with provisions governing task order protests for DOD agencies. In contrast, the Senate’s version of the 2017 NDAA includes a provision seeking to remove all authority for GAO to hear task order protests and instead requiring the agency task order ombudsman to resolve any complaints. The House attempted to address the issue in a separate bill, H.R. 5995, The GAO Civilian Task and Delivery Order Protest Authority Act of 2016, which also seeks to permanently extend GAO’s authority to hear protests of civilian task order awards over $10 million. H.R. 5995 was introduced on September 12, 2016 and passed by the House on September 21, 2016, but has made no progress in the Senate.
Pending protests of civilian agency task orders should not be affected by the sunset of GAO’s jurisdiction. See Technatomy Corp., B-405130 (June 14, 2011). However, unless Congress reinstates GAO’s lapsed jurisdiction, government contractors will only be able to protest the award of any future task order issued by a civilian agency on the narrow ground that the order increases the scope, period, or maximum value of the contract under which the order is issued.
About the Author: Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at firstname.lastname@example.org.