Recent legislation has reinstated the GAO's jurisdiction over protests of civilian task orders valued in excess of $10 million. The 2017 NDAA could increase the threshold for GAO's jurisdiction over protests of DoD task orders to $25 million.
GAO Regains Jurisdiction Over Protests of Civilian Task Orders Above $10 Million
On September 30, 2016, the Government Accountability Office's (GAO's) jurisdiction over protests of task orders issued by federal civilian agencies and valued at more than $10 million expired. This rendered these task orders protest-proof, because no forum existed for disappointed offerors to protest the award decisions of such task orders. In addition, the effect of this sunsetting of GAO's jurisdiction had extended to Department of Defense (DoD) agencies as well, because of the GAO's decisions in late November holding that, even though task orders were for services that were to be performed for DoD agencies, because the task orders were issued under two General Services Administration (GSA) multiple award indefinite-delivery, indefinite-quantity (IDIQ) contracts, they were civilian agency task orders for purposes of GAO's jurisdiction. Therefore, because GAO's jurisdiction over such task order protests had expired, the GAO dismissed the protests. See HP Enter. Servs., LLC, B-413382.2, Nov. 30, 2016; Analytic Strategies LLC; Gemini Indus., Inc., B-413758.2, Nov. 28, 2016.
In the interim, Congress had been working to pass the National Defense Authorization Act (NDAA) for fiscal year (FY) 2017. As two versions of the act made their way through Congress, it was unclear whether GAO's civilian task order jurisdiction would be reinstated. The House version of the NDAA would have reinstated the jurisdiction, whereas the Senate version would have eliminated the GAO's jurisdiction for all agency task orders. Ultimately, on November 30, Congress issued its Conference Report on S. 2943, the FY 2017 NDAA, which resolved these competing provisions. Section 835 amended 41 U.S.C. § 4106(f) to remove the sunset provision that ended GAO's jurisdiction over civilian task order protests, effectively making GAO's jurisdiction over such task orders permanent.
The 2017 NDAA was presented to President Obama on December 14. On that same day, however, President Obama signed H.R. 5995—the GAO Civilian Task and Delivery Order Protest Authority Act of 2016—which removes the sunset provision from 41 U.S.C. § 4106(f). Thus, despite the 2017 NDAA's provision to do so, GAO's jurisdiction over protests of civilian task orders valued in excess of $10 million has been reinstated without President Obama having yet signed the 2017 NDAA.
2017 NDAA Could Increase the Threshold for GAO's Jurisdiction Over Protests of DoD Task Orders to $25 Million
In addition to reinstating the GAO's jurisdiction over protests of civilian task orders valued in excess of $10 million, the 2017 NDAA limits GAO's jurisdiction over protests of DoD task orders. Currently, 10 U.S.C. § 2304c(e) grants the GAO exclusive jurisdiction over protests of task orders issued by DoD agencies that are valued in excess of $10 million. Section 835 of the 2017 NDAA increases the threshold from $10 million to $25 million, effectively decreasing the scope of GAO's jurisdiction over such task order protests.
President Obama has not yet signed the 2017 NDAA. If he does, contractors that hold multiple award contracts with DoD agencies should be aware that, unless a particular task order is valued in excess of $25 million, they will not be able to protest any adverse award decision of a task order.