The ability to protest the federal government’s issuance of a task order is limited by statute. Today, those rights are the same whether the task order is issued by the Department of Defense (DoD) or a civilian agency. Disappointed offerors may protest the issuance of task orders to the Government Accountability Office (GAO) or to the Court of Federal Claims (COFC) on the narrow ground that the order increases the scope, period, or maximum value of the contract under which the order is issued. Disappointed offerors also may protest on other grounds if the task order is valued in excess of $10 million, but such protests may only be filed at the GAO. The category of protests subject to the $10 million threshold are the most prevalent type of protest, because they include pre-award challenges to the terms of the solicitation and post-award challenges to an agency’s evaluation of proposals and award decisions.
Unless Congress acts soon—and that is looking less likely—these protest rights will change. In the 2012 NDAA, Congress included a sunset clause in the provisions governing protests of task orders issued by DoD and civilian agencies. The 2013 NDAA repealed the sunset provision for DoD task orders, but the provision remains in effect for civilian agency task orders. Compare 41 U.S.C. § 4106(f) (regarding civilian agencies) with 10 U.S.C. § 2304c(e) (regarding DoD). The sunset provision for civilian agencies takes effect on September 30, 2016, and will eliminate the ability to file protests at the GAO of task order awards exceeding $10 million. Thus, if allowed to expire, the only basis to protest the award or proposed award of a civilian agency task order—to GAO or COFC—is on the narrow ground that the order increases the scope, period, or maximum value of the underlying contract.
If the GAO’s protest jurisdiction expires, the GAO will be forced to dismiss task order protests filed after September 30, 2016, unless those protests allege that the order increases the scope, period, or value of the underlying contract. However, the GAO would likely resolve task order protests pending as of September 30, 2016. The GAO addressed this very question in a 2011 decision, which was the last time that the Office’s task order jurisdiction expired. There, the GAO held that it did “not view the sunset as affecting pending protests.” Technatomy Corp., B‑405130, Jun. 14, 2011, 2011 CPD ¶ 107 at 5.
The Technatomy decision is also noteworthy because, in that case, the GAO construed that particular sunset provision as eliminating all restrictions on its jurisdiction over task order protests. In 2011, the sunset provision eliminated the entire subsection concerning the restrictions over task order protests. GAO thus concluded that there were no restrictions on its ability to hear task order protests, regardless of the $10 million threshold. Id. at 4-5. The current sunset provision is more narrowly targeted to eliminate only the GAO’s jurisdiction over task order protests exceeding $10 million, and leaves in place the general restrictions on task order protests. The GAO is thus highly unlikely to construe the 2016 sunset provision the same way it did the 2011 sunset provision. As a result, come September 30, 2016, the GAO (and the COFC) will be unable to hear protests of task orders of any value, unless the protest is based on the relatively rare ground that the order exceeds the scope, period, or maximum value of the underlying contract.
The 2017 NDAA is currently in conference, where House and Senate conferees will iron out differences between the chambers’ versions of the bill. In its present form, the 2017 NDAA eliminates the sunset provision applicable to protests of civilian agency task orders. If passed and signed into law, the code sections governing task order protests for the DoD and non-DoD agencies will be identical, and neither will be subject to a sunset.
With the August recess and with members focused on the November elections, it is not at all clear when the bill will emerge from conference, when both houses will vote on the agreed-upon legislation, or when or whether President Obama will sign it into law. Given these uncertainties, contractors and their government contracts counsel should prepare for at least some period of time beginning on September 30, 2016, when they will not be able to challenge task orders issued by civilian agencies, unless the protest involves the relatively rare scenario where the task order is challenged because it allegedly increases the scope, period, or maximum value of the underlying contract.