On May 31, 2018, two new rules go into effect that impact the U.S. Government Accountability Office’s (GAO’s) jurisdiction to hear protests of task orders and delivery orders issued pursuant to multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contracts.
First, GAO will no longer hear most protests of task or delivery orders valued at less than $25 million and issued by the Department of Defense, the Coast Guard or NASA. Second, GAO’s jurisdiction for hearing protests valued at $10 million or more and issued by civilian agencies has been extended permanently.
Importantly, GAO maintains jurisdiction to hear protests challenging the scope, period or maximum value of the task or delivery order — regardless of the order value.
1. The threshold for protesting a noncivilian task order or delivery order is raised to $25 million.
Starting May 31, 2018, GAO will no longer hear protests of task orders or delivery orders of less than $25 million issued under an IDIQ contract by the Department of Defense, the Coast Guard, or NASA. This change represents a $15 million increase in the threshold task order or delivery order value for a GAO protest, which previously was set at $10 million. See Section 835(a) of the National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114–328) (amending 10 U.S.C. § 2304c(e)(1)(B) to raise the threshold for task- and delivery-order protests from $10 million to $25 million).
In justifying its decision to preclude protests of task orders and delivery orders valued less than $25 million, GAO contends that “there are fewer than 10 protests per year of protests between $10 million and $25 million,” so the higher threshold will result in savings for GAO and affiliated executive branch agencies, with a purportedly minimal impact on the rights of contractors holding IDIQ contracts awarded by the DoD, Coast Guard or NASA.
2. The threshold for protesting a task order or delivery order issued or funded by a noncivilian agency, under a civilian-agency IDIQ task or delivery order contract, remains $10 million.
Whether the GAO’s jurisdictional threshold for protesting a task order or delivery order is $10 million or $25 million depends upon the identity of the agency that awarded the underlying IDIQ contract, not the identity of the agency issuing or funding the task order.
To determine whether GAO has jurisdiction to hear a protest of a given task or delivery order, the potential protestor must identify: (1) the agency that awarded the underlying IDIQ contract, and (2) the agency that issues or funds the specific task order or delivery order. GAO will retain jurisdiction to hear protests of task or delivery orders valued between $10 million and $25 million that are either issued or funded by DoD, Coast Guard or NASA when a civilian agency awarded the underlying IDIQ contract. See Alliant Solutions, LLC, B-415994, B-415994.2, May 14, 2018, 2018 WL 2356119, at *3 n.8. (“The authority under which we exercise our task order jurisdiction is determined by the agency that awarded the underlying IDIQ task order contract, here GSA, rather than the agency that issues or funds the task order.”)
The May 31, 2018, rule change does not impact the $10 million threshold for protesting a task or delivery order issued or funded by a civilian or noncivilian agency pursuant to an underlying IDIQ contract issued by a civilian agency. Notably, GAO’s elevated contract value threshold for exercising jurisdiction over a task or delivery order issued pursuant to an IDIQ contract is not extended to such orders issued by civilian agencies, or issued “by [civilian agencies] for the benefit of [noncivilian agencies].” In its Alliant Solutions decision, GAO ruled that a technical direction letter issued “by the General Services Administration for the benefit of the Navy,” and valued at approximately $19.2 million, fell within the GAO’s jurisdiction “to hear protests of task orders placed under civilian agency indefinite-quantity, indefinite-delivery (IDIQ) contracts valued in excess of $10 million.” Id. (emphasis added).
3. The “sunset provision” for civilian-agency-issued task and delivery orders is repealed.
For task or delivery orders issued by civilian agencies pursuant to civilian-agency IDIQ contracts, the May 31, 2018, rule change merely aligns the GAO rules with the terms of the GAO Civilian Task and Delivery Protest Act of 2016 (Pub. L. 114–260). Pursuant to that law, the “sunset provision” restricting protests to task orders and delivery orders issued prior to Sept. 30, 2016, was repealed. Effective May 31, 2018, the GAO’s rules will reflect the lack of a “sunset provision” limiting the task and delivery order protest rights of civilian contractors.