New Legislation Reinstates GAO’s Civilian Task Order Protest Jurisdiction, but the 2017 NDAA Will Up the Threshold for Non-Civilian Agency Task Order Procurements

If you’ve recently considered filing a bid protest, you may have found yourself out of luck due to the expiration of the U.S. Government Accountability Office’s (“GAO”) statutory jurisdiction to hear certain protests involving task and delivery orders. Since 2008, the GAO has been the exclusive forum for prospective contractors to assert a protest challenging task order solicitations and awards with an anticipated value of $10 million or more, which have historically accounted for approximately 10% of protests filed at the GAO since that time. However, the GAO’s authority to hear protests involving civilian agency task orders – aside from those arguing that the order increases the scope, period, or maximum value of the underlying contract – expired on September 30, 2016, when Congress failed to pass legislation that would have extended the GAO’s task order protest jurisdiction.

Now with the December 14, 2016, passage of the “GAO Civilian Task and Delivery Order Protest Authority Act of 2016” and the forthcoming highly anticipated passage of the National Defense Authorization Act for Fiscal Year 2017 (“2017 NDAA”), which is awaiting President Obama’s signature, task order protests are back in business, but not without some significant modifications. Those who have followed the changing landscape of task order protests know that the threshold questions as to whether such a protest is viable have required consideration of the anticipated dollar value of the order, inclusive of options, and whether a civilian or non-civilian agency is the awarding entity. These questions remain at the forefront for those considering filing a task order protest, and as recent GAO decisions interpreting the scope of its jurisdiction have shown, the answer to the seemingly basic question of “who” the relevant awarding entity is may not be so straightforward.

Current State of Task and Delivery Order Protests

Under the “GAO Civilian Task and Delivery Order Protest Authority Act of 2016,” prospective contractors may now protest:

• civilian agency task and delivery orders valued at $10 million or more (reinstating the GAO’s lapsed jurisdiction).

Under Section 835 of the 2017 NDAA, prospective contractors will also be able to protest:

• non-civilian agency task and delivery orders valued at $25 million or more (increasing the threshold from $10 million).

As before, the GAO remains the exclusive forum for filing such a protest, unless the protest argues that the issuance or proposed issuance of a task or delivery order increases the scope, period, or maximum value of the underlying contract, regardless of the anticipated dollar value of the order (these protests can still be heard by contracting agencies, the GAO, and the U.S. Court of Federal Claims).

What Changes Under the New Legislation?

Unlike before, the reinstatement of the GAO’s civilian task order protest jurisdiction does not contain a sunset provision, thus providing more permanency and avoiding the gap in its authority that left many offerors without a path to protest during the first three months of this fiscal year. However, the introduction of new differing dollar thresholds that apply depending on whether the protester is dealing with a civilian or non-civilian agency raises potentially thorny issues that require careful and early protest planning, especially considering that the higher dollar threshold that now applies when dealing with a non-civilian agency will limit the number of these awards that will be subject to protest.

Lessons Learned from Recent GAO Decisions

Although those companies who were left out in the cold without the ability to protest between October 1, 2016, and the enactment of the “GAO Civilian Task and Delivery Order Protest Authority Act of 2016” and 2017 NDAA are likely without any recourse to retroactively challenge those procurements despite the reinstatement of the GAO’s jurisdiction, a number of recent actions at the GAO during that interregnum period provide useful guidance for future potential protesters.

• Following the lapse in its civilian task order jurisdiction, when the GAO was presented with such a task order protest, the GAO declined to consider the protester’s complaints even in the face of arguments that: (i) fairness dictated that the protest should nevertheless be heard; (ii) another protest filed before the September 30 sunset date involving the same procurement was pending; (iii) the protester was excluded from the competition prior to the sunset date; or (iv) the GAO’s jurisdiction might be restored within the 100-day period for issuing a decision. Although those arguments raise issues that are specific to the GAO’s lapse in its statutory authority, they reinforce the rule that the GAO will strictly interpret the limits on its jurisdiction regardless of the potential merits of a protest.

• Another point addressed by the GAO in its recent task order protest decisions concern the relevant awarding authority, which has important implications for task order protests going forward. Because the lapse in its authority concerned only civilian task order protests (as opposed to protests of non-civilian agency-issued task orders), protesters attempted to get around the jurisdictional bar by arguing that the task order at issue involved a branch of the U.S. Department of Defense (“DoD”) as the relevant agency. On the surface it would seem that this would be an easy question to answer – who is the awarding entity? – but in instances where a civilian agency awards the underlying indefinite-delivery, indefinite-quantity (“IDIQ”) contract, but a particular task or delivery order will benefit a non-civilian agency, the answer of who the relevant agency is, and now which dollar threshold applies, becomes somewhat complicated.

• When faced with this question in cases where the underlying IDIQ contract award was issued by a civilian agency, the GAO consistently viewed the protest as involving a civilian task order protest, even when the task order procurement at issue was being conducted on behalf of the DoD, subject to DoD regulations, and would be funded by the DoD. The GAO explicitly rejected protesters’ arguments that jurisdiction should be based on the agency that issued the task order, ruling that the agency that awarded the task order contract was what mattered.

Given that the two new pieces of legislation make a distinction between civilian and non-civilian task order protests as far as the applicable dollar threshold is concerned, these cases provide useful guidance for other potential protesters when analyzing whether the $10 million (civilian) or $25 million (non-civilian) threshold applies and thus whether pursuing a protest is a potential option when there are flaws in a solicitation or improprieties in an agency’s award decision. In light of a continuing government-wide push to consolidate more procurements into broader IDIQ contracts, these cases and the new wrinkles posed by the changes to the relevant statutes function as a reminder that these sorts of issues should be discussed with counsel whenever a possible protest is on the horizon.