Although Congress failed to pass a federal budget for Fiscal Year 2017 (FY17), which began on October 1, both the House and Senate passed a Continuing Resolution (CR) that will continue to fund government agencies through December 9, at fiscal year 2016 spending rates, thereby avoiding a federal government shutdown. Operating under a CR creates significant uncertainties for federal agencies, as well as the contractors who support them. Among the legislation that has not yet been passed for FY17 is the National Defense Authorization Act (NDAA). This legislation funds the Department of Defense, and includes provisions impacting other federal agencies, as well. The House and Senate have not yet reconciled their respective proposed versions.
In addition to defense spending levels, the House’s version of the FY17 NDAA would extend GAO’s jurisdiction over bid protests arising from Task Orders issued by civilian agencies and valued at over $10 million. Congress gave GAO jurisdiction over Task Orders in excess of $10 million in 2008. Initially, the Competition in Contracting Act (CICA), passed in 1984, established GAO’s jurisdiction to hear protests of solicitations or contract awards. CICA did not distinguish between protests of standalone contracts and task orders awarded from Indefinite Quantity/Indefinite Delivery (ID/IQ) contracts. In 1994, however, Congress passed the Federal Acquisition Streamlining Act (FASA), which did make such a distinction. FASA barred GAO protests regarding procurements of task orders except where the protestor alleges that the task order increases the scope, period, or maximum value of the contract under which the award was made.
This jurisdictional issue was revisited in the FY08 NDAA. While an offeror could still protest a task order increasing the scope, performance period, or ceiling cost of the underlying contract, the NDAA-08 expanded GAO’s jurisdiction over Task Orders to include any task order over $10 million. That rule had a sunset provision, though, and the option to protest any Task Order over $10 million ended, even though disappointed offerors could still protest Task Orders on the other specified grounds. Ultimately, GAO’s jurisdiction to hear bid protests over $10 million was reinstated for all agencies. For Department of Defense procurements, that jurisdiction was made permanent (10 USC §2304(c)). For procurements by non-DOD agencies, a sunset provision was again added to GAO’s jurisdiction—it would end on September 30, 2016.
Now that September 30 has come and gone, and Congress took no action to extend GAO’s jurisdiction over protests of Task Orders by civilian agencies, a disappointed bidder on one of these procurements no longer has the option to protest to GAO. This sunset provision is unlikely to impact protests that were filed before September 30—GAO dealt with this question during the 2011 lapse in its jurisdiction, and held that such a restriction did not impact protests filed before it took effect, in Technatomy Corp., B-405130, June 14, 2011, 2011 CPD ¶107.
What happens next remains to be seen. The House version of the 2017 NDAA would permanently extend GAO’s jurisdiction for all Task Orders, both through DoD and civilian agencies; however, the Senate’s version includes no such provision. For contractors, this loss of a potential avenue for review means that their review and understanding of a solicitation’s requirements becomes even more critical, and to the extent that something is unclear, potential offerors must take advantage of any opportunity to ask the agency questions. For post-award concerns, disappointed bidders should always request a debriefing to identify procurement flaws, even though in some cases the agency will not be required to provide one. Protestors will still be permitted to protest at either the agency or, in some cases, at the Court of Federal Claims, but a protest at GAO has several significant advantages over either of these fora: (1) a timely GAO protest filed within five days of an award or a debriefing triggers an automatic CICA stay of the protested procurement or challenged award, (2) GAO is statutorily required to issue a protest decision within 100 days, and (3) a prevailing protestor may be able to recover protest costs, including attorneys’ fees. Additionally, GAO’s processes are quite clear, do not vary by agency, and generally are less expensive than going to court.
Pending passage of the House’s version of the NDAA-17 or some separate legislation reinstating GAO’s jurisdiction over these bid protests, offerors on civilian agency procurements can no longer resort to the GAO. Companies need to keep the lack of this recourse in mind as they formulate their future bidding options and strategies, and decide the appropriate post-award course of action when they are not the successful offeror on a competitive procurement. Jackson Kelly will continue to monitor developments.
Carrie Willett is responsible for the contents of this Short Take.
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