On October 1, 2016, the Government Accountability Office’s (“GAO”) jurisdiction over protests on civilian agency task orders valued at more than $10 million expired. This leaves government contractors with few options for protesting these task order awards.
The 1994 Federal Acquisition Streamlining Act (“FASA”) was passed to alleviate concerns that the federal procurement process was too cumbersome and complicated. (Author’s note: It has only become more cumbersome and complicated since then.) FASA included a limitation on contractors’ ability to protest the issuance of task order awards, except for a protest on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued.
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.
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. However, 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 even tried to address the issue in a separate bill, H.R. 5995, The GAO Civilian Task and Delivery Order Protest Authority Act of 2016, which is also try 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 not moved forward in the Senate.
Pending protests of civilian agency task orders should not be affected by the expiration of GAO’s jurisdiction. (Reference Technatomy Corp., B-405130).
Unless Congress reinstates GAO’s expired jurisdiction, government contractors will only be able to protest the award of any future task order issued by a civilian agency on the grounds that the order increases the scope, period, or maximum value of the contract under which the order is issued.