Government contractors hoping to challenge a civilian agency’s award of a task or delivery order may be out of luck, at least temporarily.
Prior to September 30, 2016, the Government Accountability Office (GAO) had exclusive jurisdiction over protests of civilian task and delivery orders valued at more than $10 million under multiple-award IDIQ contracts. The National Defense Authorization Act (NDAA) for Fiscal Year 2008 amended the Federal Acquisition Streamlining Act (FASA) to grant GAO this jurisdiction, Pub. L. No. 110-181, 122 Stat. 3, 237 (2008); the NDAA for Fiscal Year 2012 then established a sunset date for this jurisdiction of September 30, 2016 (41 U.S.C. § 4106(f)). Any such protests filed after September 30, 2016, are now outside GAO’s jurisdiction, regardless of when the underlying contract was awarded (41 U.S.C. § 4106(f)). However, contractors retain the right to protest military task and delivery orders valued over $10 million (10 U.S.C. § 2304c(e)), as well as civilian or military task and delivery orders which they allege increased the scope, period, or maximum value of the underlying contract (id. and 41 U.S.C. § 4106(f)).
The Court of Federal Claims’ jurisdiction, which is limited to civilian or military task order protests that allege increased scope, period, or maximum value of the underlying contract, is unaffected by the NDAA sunset provision (10 U.S.C. § 2304c(e); 41 U.S.C. § 4106(f)).
Ryan Consulting Group, Inc., of Indianapolis, Indiana, bore the brunt of the jurisdictional sunset in a GAO decision issued November 7, 2016 (B-414014). Ryan, one of the multiple-award contract holders, was protesting a task order award by Department of Housing and Urban Development under a multiple-award, IDIQ contract with the National Institutes of Health. The task order for enterprise architecture and information technology management support services was valued at more than $10 million. Ryan did not allege any increase in scope, period, or maximum value of the underlying contract, so GAO had no other basis for jurisdiction. GAO dismissed Ryan’s protest, filed October 14, 2016, for lack of jurisdiction, and noted that GAO has no authority to “grandfather” any protests.
Two pieces of pending legislation could reinstate GAO’s jurisdiction.
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