Gregory R. Hallmark is an attorney in Holland & Knight's Tysons office.
It appears that, at long last, the Government Accountability Office (GAO) will have permanent jurisdiction over task and delivery orders exceeding certain thresholds.
The right of federal contractors to protest agencies' actions with respect to task and delivery order procurements has recently been in a maddening state of flux. The Federal Acquisition Streamlining Act of 1994 (FASA) initially barred all protests of task and delivery orders under multiple-award contracts except in limited circumstances. But Congress amended FASA in 2008 to provide, generally, that a task order procurement may be protested if the order is valued at $10 million or more and that such protests may only be brought at GAO. Critically, Congress also put an expiration date on GAO's task order jurisdiction. While Congress subsequently removed the expiration date for defense agency task order procurements, it did not do so for civilian agencies. As a consequence, GAO's jurisdiction over civilian agency task orders expired on October 1, 2016. Its jurisdiction over defense agency task orders remains in place.
Meanwhile, competing versions of the 2017 National Defense Authorization Act (NDAA) legislation would either reinstate GAO's jurisdiction over civilian agency task orders (the House version) or eliminate it for all agency task orders (the Senate version).
Events this week highlighted the significance of Congress's decision. GAO issued two decisions dismissing protests, without reviewing their merits, due to the October 1 expiration of its civilian agency task order jurisdiction. In Analytic Strategies LLC; Gemini Industries, Inc., B-413758.2, Nov. 28, 2016 and HP Enterprise Services, LLC, B-413382.2, Nov. 30, 2016, GAO held that even though the task orders were for services to be performed for the Department of Defense, they were civilian agency task orders for purposes of GAO's jurisdiction because they were issued by the General Services Administration under GSA's OASIS and ALLIANT multiple-award IDIQ contracts, respectively. Because the protests were filed after September 30, 2016, GAO had no jurisdiction to hear them.
That procurements are conducted as task orders rather than stand-alone contracts does not mean they are trivial; the Analytic Strategies decision notes that the task order in question was estimated to be worth up to $132 million. Indeed, this is precisely why Congress amended FASA in 2008 to allow for protests on task orders over $10 million.
Just as GAO issued those decisions, word came that Congress appears set to restore GAO's task order jurisdiction permanently. On Wednesday, November 30, 2016, the NDAA emerged from the conference committee appointed to reconcile the House and Senate versions. A Conference Report that includes the text of the negotiated NDAA indicates that a compromise was reached that will permanently authorize protests of task orders at civilian agencies by repealing the "expiration date" provision. While the Senate's earlier effort to eliminate protests for defense agency task order procurements was dropped, the compromise NDAA will increase the threshold to protest defense agency task orders from $10 million to $25 million. (See § 835.) The threshold to protest civilian agency task orders will remain $10 million.
In sum, if this new version of the NDAA is enacted, contractors may once again protest task orders issued by either civilian or defense agencies at GAO—but only if the order is worth at least $10 million if issued by a civilian agency or at least $25 million if issued by a defense agency.
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