Starting October 1, and ending whenever Congress passes the 2017 NDAA, you can no longer protest civilian agency task orders, no matter the value, except in very limited circumstances that almost never occur.
It’s conventional wisdom that you can’t protest task order awards under $10M, but you can protest task order awards over $10M.
This conventional wisdom has a basis in law. Specifically, for Department of Defense contracts, 41 USC 4106, and for civilian agency contracts, 10 USC 2304c.
These two sections of the law are identical as regards task order protests – they both say to start that you cannot protest task order awards. But, that you can protest a task order award above $10M, and GAO has exclusive jurisdiction over those task order protests, and you can protest a task order in other very limited circumstances (that almost never occur).
The civilian law, though, contains a very important additional clause. It contains a sunset provision that eliminates the right to protest a task order over $10M as of September 30, meaning that after that date you can’t protest task order awards at all (except in limited circumstances, etc., etc.)
WHAT ABOUT THE 2017 NDAA?
Congress, both House and Senate, have clauses in the 2017 NDAA that remove the sunset clause and restore the clause that allows you to protest task orders over $10M at the GAO.
By way of background, the “NDAA” is the National Defense Authorization Act. It is the bill that funds the Department of Defense, and of critical importance to federal contractors, it is often (along with the Small Business Act) the primary means by which Congress makes changes to the laws regarding federal contractors.
Reaching way back to remembering how a bill becomes a law, the House and Senate each pass their versions of a bill, then get together in what is called “conference” to work out any differences. Once those differences are worked out, the revised bill is approved again by both the House and Senate, and goes to the President for signature or veto. If the President signs the bill, it becomes a law.
Right now, both the House and Senate have passed their versions of the 2017 NDAA, and the bill is in conference for the differences between the two versions to be worked out. But…it’s an election year, and things move very slowly in Congress during an election year.
Of note, the Senate version of the 2017 NDAA makes huge changes to the GAO bid protest rules. Huge changes worthy of discussion, but that’s beyond the scope of this post, and it remains to be seen whether those changes will make it out of conference into the joint bill.
HAS THIS EVER HAPPENED BEFORE?
Yep. In 2011 the same thing happened. There existed a sunset clause in both the civilian and DoD versions of the law, except that sunset clause eliminated the entire prohibition on task order protests, meaning that for a period of time you could protest any task order – civilian or DoD, of any value – in any forum Agency, GAO, or Court of Federal Claims.
The 2012 NDAA reinstated the task order prohibition and the $10M exception and removed the sunset clause from the DoD version of the law, while setting the civilian sunset to 2016, and making the civilian sunset only apply to the $10M exception.
And here we are.
WHAT ABOUT THOSE ‘LIMITED CIRCUMSTANCES’?
You can always protest on the grounds that the task order increases the scope of the IDIQ, the period of the IDIQ, or the maximum value of the IDIQ. You’ve always been able to bring those protests in any one of the three protest forums – GAO, Agency, or Court of Federal Claims. And none of that changes.
But situations where a task order increases the value or the period of an IDIQ are almost non-existent, and situations where a task order increases the scope of an IDIQ are extremely rare.
So while you still have recourse in those situations, those situations don’t happen that often.
WHAT SHOULD I DO?
Just keep in mind that beginning October 1 for some undefined period of time, likely at least until after the election in November, and possibly through the winter, you can’t protest civilian task order awards for any of the run of the mill reasons that you’ll commonly see in government procurements.
Be extra careful in your civilian procurements this fall and winter and know that for some period of time you will have no recourse if you think you’ve been treated unfairly.
If you have questions about this or other government contract issues, don’t hesitate to contact Christopher Shiplett or Danielle Hart for assistance.