Contractors Are Without A Forum To Protest Civilian Agency Task And Delivery Order Award Decisions
The Government Accountability Office's (GAO) jurisdiction over protests of civilian agency task and delivery orders expired on October 1, 2016, leaving federal contractors without a forum to protest a civilian agency's task and delivery order award decision.
The Federal Acquisition Streamlining Act (FASA) of 1994 prohibits protests related to task and delivery orders unless the protest alleges that the order "increases the scope, period or maximum value of the contract under which the order is issued." 41 U.S.C. § 4106(f)(1). The National Defense Authorization Act (NDAA) for Fiscal Year 2008 granted the GAO jurisdiction over protests of task and delivery orders with a value above US$10 million, regardless of the bases of protest. 41 U.S.C. § 253j(e) (2008). This statute provided contractors with an opportunity to protest an order issued under any indefinite-delivery contract pursuant to FAR Subpart 16.5, including government-wide acquisition contracts with the General Services Administration (GSA), that exceeded this jurisdictional threshold.1 The Act, however, included a three-year sunset provision by which GAO's jurisdiction would expire as of May 27, 2011. 41 U.S.C. § 253j(e)(3) (2008). Through the NDAA for Fiscal Year 2012, Congress extended the sunset date for protests of task and delivery orders under Title 41 (civilian) contracts to September 30, 2016, and removed the sunset provision for protests of task or delivery orders under Title 10 (DoD, NASA, and Coast Guard).
Although the House introduced legislation earlier this year to eliminate the sunset provision for protests of task and delivery orders under civilian contracts, Congress failed to enact any such legislation on or before September 30, 2016. The funding bill that Congress passed on September 28, 2016, and the President signed into law on September 29 (H.R. 5325), does not extend or address this sunset provision. As a result, contractors' challenges to a civilian agency's issuance of task and delivery orders at GAO or the Court of Federal Claims are now limited only to allegations that the task and delivery order increases the scope, period, or maximum value of the underlying base contract. Traditional agency errors or improprieties in the evaluation and award of task and delivery orders issued under civilian contracts are without administrative or judicial review. GAO statistics show that of the 2,647 protests closed in FY 2015, 335 were attributable to GAO's bid protest jurisdiction over task or delivery orders.
Accordingly, GAO will now dismiss any task and delivery protests challenging action by a civilian agency that does not fall within the limited subset of FASA-approved protest grounds. GAO, however, will likely still resolve those protests challenging task and delivery orders issued by civilian agencies that the contractor filed on or before September 30. In 2011, when Congress failed to act prior to the earlier sunset deadline, GAO held that it did "not view the sunset as affecting pending protests." Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶ 107. Further, there may be instances where a protester has filed its protest on or before September 30, 2016, and, upon receipt of an agency's production of the record triggered by this initial protest, finds that it has supplemental protest grounds. In such instances, GAO, based on its reasoning in Technatomy, should treat supplemental protests as an extension of the initial protest, and therefore find it has jurisdiction over any supplemental protest grounds. GAO, however, has not issued definitive guidance on this issue.
Some contractors may opt to seek relief through the ordering agency's task order ombudsman, but the scope and timing of relief is much less certain than in a GAO review. Neither the Federal Acquisition Regulation nor agency supplements provide sufficient information about how the ombudsman process works, the relief available, or the role and authority of the ombudsman. Unlike GAO protest decisions, the results of any ombudsmen decisions are not public. Consequently, there is no transparency regarding the efficacy of the process, the types of resolution available, nor any published decisions to guide the agencies. Congress's failure to extend GAO's jurisdiction over civilian agency task and delivery order awards therefore effectively leaves disappointed bidders without a forum in which to challenge procurement errors by civilian agencies in their task and delivery award decisions. Congress, however, may revisit this issue after it returns from its seven-week recess, for example, as part of the NDAA for Fiscal Year 2017. Contractors should therefore carefully monitor legislation on this issue.
The Court of Federal Claims and the GAO have not applied the statutory jurisdictional limitations to Federal Supply Schedule orders pursuant to FAR Subpart 8.4.See PricewaterhouseCoopers Public Sector, LLP v. United States, 126 Fed. Cl. 328, 344-45 (2016); Spectrum Comm, Inc., B-412395.2, Mar. 4, 2012, 2016 CPD ¶ 82 at 3 (resolving merits of protest concerning FSS order valued at less than US$10 million).