Over the past few years, we have dedicated multiple posts to understanding the scope of jurisdiction over protests of task and delivery orders. Previous posts can be found here and here. Thanks to an amendment contained in the 2013 National Defense Authorization Act [pdf], the issue remains somewhat unsettled. Fortunately, Congress still has a few years to set the record straight.
Prior to the 2013 NDAA, disappointed offerors were allowed to protest the issuance of task and delivery orders valued over $10 million regardless of whether the order was issued by a civilian or Department of Defense (DoD) agency. Both of the authorizing statutes providing for task order protest jurisdiction on civilian and DoD orders over $10 million were set to expire on September 30, 2016 (the “sunset provisions”).
Section 830 of the 2013 NDAA amended 10 U.S.C. § 2304c(e) by eliminating the sunset provision—providing for permanent GAO jurisdiction over challenges to DoD task and delivery orders over $10 million. This amendment only applies to the statute authorizing jurisdiction over DoD task and delivery orders. The corresponding statute providing for task order protest jurisdiction over civilian agency task and delivery orders over $10 million, 41 U.S.C. § 4106(e), is still set to expire on September 16, 2016.
With the amendments included in the 2013 NDAA, the landscape for task order protests now looks like this:
Click here to view table.
Certainly Congress did not mean to provide for permanent task order protest jurisdiction solely on DoD task orders, so hopefully there is sufficient time to address the ambiguity in advance of the sunset for civilian agency task order protest jurisdiction.