With the passage of the National Defense Authorization Act for Fiscal Year 2008 (the "2008 Act"), Congress expanded the GAO's jurisdiction to include bid protests in connection with civilian and defense contract task and delivery orders valued at over $10 million. See Section 843 of the 2008 Act, Pub. L. No. 110-181. Congress also included a sunset provision in the 2008 Act that limited that grant of expanded jurisdiction to 3 years – i.e., until May 27, 2011. See id. We previously discussed Section 843 of the 2008 Act and its implications here, here, and here.
With the expiration date in sight, Congress sought to extend the
GAO's expanded jurisdiction until September 30, 2016.
See Section 825 of the National Defense Authorization Act
for Fiscal Year 2011 (the "2011 Act").
Or so we thought. Section 825 of the 2011 Act only references 10
U.S.C. § 2304c(e), which relates to Department of Defense
("DoD") contracts. There is no mention of Title 41, which
applies to civilian contracts, as there had been in the 2008 Act.
See H.R. 6523, Section 825; see also S. 3454,
Section 833. As a result, Section 825 of the 2011 Act extends the
GAO's jurisdiction over task and delivery orders in excess of
$10 million until September 30, 2016 only for DoD contract task
and delivery orders. The GAO's expanded jurisdiction over
civilian contract task and delivery orders apparently will
sunset on May 27, 2011.
In this regard, the 2011 Act's legislative history is in fact
directed primarily toward the extension of the GAO's
jurisdiction over DoD task and delivery order bid protests. The
Senate Report only refers to 10 U.S.C. § 2304c, which, as
mentioned above, relates to DoD contracts. See Senate
Report 111-201, Section 833. In addition, the Joint Explanatory
Statement of the Committees on Armed Services of the U.S. Senate
and House of Representatives on H.R. 6523 likewise only referenced
DoD contract task and delivery orders and merely summarized Section
825's procedural development.
However, many in the government contracts community continued to
ponder whether Section 825's omission of Title 41 was a
technical error or the result of mere oversight. The Senate Report
included an intriguing additional detail that leaves one wondering
why the extension of jurisdiction was limited to DoD orders:
The sunset date was included in section 2304c to provide the committee an opportunity to adjust the provision if the new protest authority resulted in a surge of bid protests. In April 2009, the Government Accountability Office reported that only a handful of bid protests are attributable to the new authority. The committee concludes that no adjustment to the authority is needed.
See id. The referenced GAO Report did conclude that, at
the time, there had been a limited number of DoD protests filed
under the GAO's expanded bid protest jurisdiction. See
Report to Congress on Bid Protests Involving Defense Procurements,
B-401197, at p. 8 (Apr. 9, 2009). Interestingly, although the GAO
Report "generally refer[red] only to DoD procurements,"
it went on to say that "[i]n many cases, the analysis and our
conclusions would be the same for civilian agency
procurements." See id. at p. 5 n.7. The GAO Report
also cautioned that "no inference should be drawn that protest
processes or trends would be different for civilian
procurements." See id. Thus, while the GAO Report was
directed at DoD procurements, it did not suggest that there was a
"surge" of new protests on either the defense or civilian
side of the equation. In other words, the referenced GAO Report did
not provide a basis for failing to extend the GAO's
jurisdiction over civilian contract task and delivery order bid
protests.
In sum, the 2011 Act and accompanying materials are all directed
toward extending the GAO's bid protest jurisdiction over DoD
contract task and delivery orders valued at over $10 million until
September 30, 2016. While there is a growing chorus alleging that
Congress' failure to extend the GAO's jurisdiction over
civilian contract task and delivery orders was the result of a
technical error or oversight, it remains to be seen whether and
when Congress will act to correct the omission. For the time being,
it seems to be clear that absent further legislative action, the
GAO's bid protest jurisdiction over civilian contract task and
delivery orders valued at over $10 million will sunset after May
27, 2011, with the exception of protests alleging that the task or
delivery order exceeded the scope, period or maximum value of the
underlying contract.
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