While we hate to be the bearer of bad news, disappointed bidders may soon face a significant obstacle to protest an agency’s award decision of a task or delivery order. Barring prompt Congressional action (a phrase that is rarely a good thing), the Government Accountability Office’s (“GAO”) jurisdiction over most civilian agency task or deliver order protests conducted will expire on September 30, 2016, leaving contractors little chance to challenge civilian agency award decisions.
Current Task or Delivery Order Bid Protest Jurisdiction
Jurisdiction for bid protests of task or delivery orders has endured a tumultuous history. Over the past 20 years, Congress has limited and expanded the task or delivery order bid protest jurisdiction numerous times.
Currently, a contractor’s ability to protest the “issuance or proposed issuance of a task or delivery order” is governed by two separate, but similar, statutes: (i) 41 U.S.C. § 4106 (applicable to civilian agencies); and (ii) 10 U.S.C. § 2304c (applicable to the Department of Defense). Both statutes contain identical language generally prohibiting bid protests of task or delivery order procurements, except under the following circumstances:
- The task or delivery order increases the scope, period, or maximum value of the contract under which the order is issued; or
- The task or delivery order is valued in excess of $10,000,000.
See 41 U.S.C. § 4106(f)(1)(A), (B); 10 U.S.C. § 2304c(e)(1)(A), (B).
Both statutes also expressly require all task or delivery order protests to be submitted for review by the GAO. See 41 U.S.C. § 4106(f)(2), (B); 10 U.S.C. § 2304c(e)(2). Accordingly, such protests may not be filed at the U.S. Court of Federal Claims.
The FY 2012 National Defense Authorization Act “Sunset Provision”
On December 31, 2011, President Obama signed into law the National Defense Authorization Act (“NDAA”) for Fiscal Year (“FY”) 2012. Section 813 of the FY12 NDAA amended 41 U.S.C. § 4106 to include a “sunset provision,” eliminating GAO’s jurisdiction over civilian agency task or delivery order awards exceeding $10 million effective September 30, 2016. To the extent that this provision takes effect, which is looking increasingly likely, the only available basis to protest a civilian agency task or delivery order would be on the grounds that the order “increases the scope, period, or maximum value of the contract.” It is noteworthy that this sunset provision does not apply to 10 U.S.C. § 2304c (i.e., protests of Department of Defense task or delivery orders).
If Section 813 of the FY12 NDAA takes effect, there will be absolutely no forum available to contractors to challenge a civilian agency award decision of a task or delivery order. In fact, GAO will be required to dismiss all civilian agency task or delivery protests submitted on, or after, October 1, 2016. This provision, however, is unlikely to affect any protests filed before that date. See Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶ 107 at 5 (refusing to dismiss a protest submitted before the “sunset” date).
This is particularly significant because task or delivery order protests account for approximately 10-15% of all bid protests filed at GAO. (Note: this figure includes both civilian agency and Department of Defense task or delivery order protests). Accordingly, Section 813 of the FY12 NDAA will effectively create a protest jurisdiction vacuum over a limited, but not insignificant, portion of government procurement activity.
Conclusion
Despite the fact that it appears a near certainty that Section 813 off the FY12 NDAA will take effect on September 30, 2016, there may be some good news for contractors. The current draft of the FY17 NDAA includes a provision repealing the sunset provision for the jurisdiction of civilian agency task or delivery order protests. There is no clear indication, however, of when the FY17 NDAA will eventually be signed into law. With any luck, Congress will act sooner, rather than later.
Image courtesy of Flickr (licensed) by Magnus Bråth