Civilian Task Order Jurisdiction Restored at GAO
On December 14, 2016, President Obama signed the "GAO Civilian Task and Delivery Order Protest Authority Act of 2016," which permanently restores the Government Accountability Office's ("GAO") protest jurisdiction over task and delivery orders valued at $10 million or more issued under civilian agency indefinite delivery/indefinite quantity ("IDIQ") contracts. This jurisdiction previously expired on September 30, 2016, under the sunset provision in 41 U.S.C. § 4106(f)(3).
With regard to procurements by civilian agencies, 41 U.S.C. § 4106(f) provides generally that protests "in connection with the issuance or proposed issuance of a task or delivery order" are not authorized, although courts and GAO may consider protests that the order increases the scope, period, or maximum value of the contract under which the order is issued. The exception is for protests of an order valued in excess of $10 million, over which GAO had exclusive jurisdiction. Under 41 U.S.C. § 4106(f)(3), however, GAO's jurisdiction over these protests expired on September 30, 2016.
Since that date, GAO has dismissed protests against the issuance of task and delivery orders under civilian agency IDIQ contracts, finding that it had no jurisdiction to hear the cases, even if the order was issued by a Department of Defense ("DoD") agency. For example, in Wyle Laboratories, Inc., GAO dismissed a protest challenging the Navy's issuance of a task order under the General Services Administration's ("GSA") One Acquisition Solution for Integrated Services ("OASIS") contract. Wyle Laboratories, Inc., B-413989, Dec. 5, 2016. In dismissing the protest, GAO noted that, while the task order was issued by a DoD agency, and GAO has jurisdiction over "non-civilian agency task and delivery orders," the challenged procurement here was issued under a civilian IDIQ contract (GSA's OASIS multiple award IDIQ contract), and GAO's jurisdiction to hear protests regarding task orders issued against a multiple-award IDIQ contract vehicle awarded by a civilian agency expired on September 30, 2016.
The GAO Civilian Task and Delivery Order Protest Authority Act of 2016 restores GAO's jurisdiction by striking the sunset language from 41 U.S.C. § 4106(f). As a result, GAO can once again hear protests in connection with the issuance of task and delivery orders valued at $10 million or more—regardless of whether those orders were issued under civilian agency IDIQ contracts or noncivilian contracts.
The 2017 National Defense Authorization Act ("NDAA"), which has been passed by both Chambers of Congress but has not yet been signed by the President, also sought to restore GAO's task and delivery order jurisdiction for civilian procurements. However, the NDAA also contains language that revokes GAO's jurisdiction over certain task and delivery orders issued by DoD agencies—currently, GAO has jurisdiction over task and delivery orders issued under noncivilian IDIQ contracts valued at $10 million or more. However, the 2017 NDAA raises that jurisdictional threshold to $25 million. Therefore, if the President signs the NDAA, GAO will lose the jurisdiction it previously had over these orders with values ranging from $10 million to $25 million.
For now, however, the jurisdictional threshold for task and delivery orders issued by civilian or noncivilian agencies is $10 million. The restoration of jurisdiction over civilian agency task and delivery orders is a welcome development in the bid protest arena, where government contractors depend on the GAO protest forum to provide a fast, unbiased, and professional examination of more than 2,700 protests per year. This is especially so in light of GAO's December 15, 2016, "Bid Protest Annual Report to Congress for Fiscal Year 2016," showing that nearly half of all protests filed (46 percent) result in a protester obtaining some form of relief through either a sustained protest decision or voluntary agency corrective action.
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