On December 8, 2016, the Senate passed the National Defense Authorization Act (NDAA) of 2017 previously passed by the House, and the legislation is pending President Obama’s signature. Once signed, Section 835 of the NDAA will restore and make permanent the Government Accountability Office’s (GAO) jurisdiction to hear civilian agency task order protests. In addition, the NDAA will increase to $25 million the jurisdictional threshold for task orders issued by the Department of Defense (DoD).
From the enactment of the Federal Acquisition Streamlining Act in 1994 through 2008, jurisdiction over task order protests at the GAO and the Court of Federal Claims (COFC) was limited to allegations that a task order increased the scope, period or maximum value of the underlying contract. Responding in part to agencies’ increasing reliance on task orders, the 2008 NDAA extended GAO’s protest jurisdiction, but not COFC’s, to include protests of task orders awards over $10 million on other grounds, but provided that the subsection expired in May 2011. The 2012 NDAA extended the GAO’s jurisdiction over civilian agency task orders, but only through September 30, 2016.
In the 2013 NDAA, Congress repealed the expiration date for DoD task order protests above the $10 million threshold, but left the September 30, 2016 expiration date in place for civilian agency task orders. In accordance with that provision, as of October 1, 2016, the GAO’s jurisdiction over civilian agency task orders has once again been limited to protests that the order increased the scope, period or maximum value of the underlying IDIQ. This lapse has already resulted in the dismissal of multiple protests. See, e.g., Analytic Strategies LLC; Gemini Indus., Inc., B 413758.2, et al., Nov. 28, 2016; HP Enter. Servs., LLC, B-413382.2, Nov. 30, 2016; Wyle Laboratories, Inc., B-413989, Dec. 5, 2016.
After years of on-again, off-again jurisdiction, Section 835 of the 2017 NDAA will make permanent GAO jurisdiction over protests of civilian agency task orders above the $10 million threshold by removing the effective date provision under 41 U.S.C. § 4106(3). But it will also introduce a new distinction between coverage for civilian agency and DoD task orders, raising the jurisdictional threshold at 10 U.S.C. § 2304c from $10 million to $25 million.
Assuming the 2017 NDAA is signed it to law, pending GAO protests are unlikely to be affected. But going forward contractors will need to be mindful of the different jurisdictional thresholds applicable to DoD and civilian agency task orders. Further, contractors should be aware that the limitations on task order protests do not apply to awards under Federal Supply Schedule contracts under FAR Subpart 8.4, and nothing in Section 835 changes that. Finally, don’t be surprised to see more legislative tinkering to GAO’s task order jurisdiction to eliminate the seemingly unnecessary distinction between the DoD and civilian jurisdictional thresholds.
