2017 NDAA Restores GAO’s Task Order Jurisdiction – But Ups DoD Threshold

The 2017 National Defense Authorization Act restores the GAO’s recently-expired jurisdiction to hear protests of civilian task and delivery orders valued in excess of $10 million.

The 2017 NDAA also continues to allow the GAO to hear protests of DoD task and delivery orders–but raises the jurisdictional threshold to $25 million.

As we blogged about in November, the GAO’s authority to hear bid protests in connection with civilian task and delivery orders expired on September 30, 2016. Even though DoD task and delivery orders weren’t directly impacted by the expiration, the GAO held, in two recent cases, that it lacked jurisdiction to consider protests of orders issued by DoD under civilian GWACs.

Specifically, in Analytic Strategies, LLC, B-413758.2 (Nov. 28, 2016), the GAO held that it did not have jurisdiction to consider a protest of a task order issued by the DoD under the GSA’s OASIS vehicle; in HP Enterprise Services, LLC, B-413382.2 (Nov. 30, 2016), the GAO made a similar finding with respect to a DoD order under the GSA ALLIANT IDIQ. The GAO held that it was the civilian nature of the underlying IDIQ vehicle that determined jurisdiction, not the identity of the ordering agency.

That’s where the 2017 NDAA comes in. The 2017 NDAA permanently restores the GAO’s ability to hear civilian task and delivery order protests valued in excess of $10 million. The statute maintains the GAO’s jurisdiction over DoD task and delivery order protests, but only for those in excess of $25 million. Ironically, the GAO’s decisions in Analytic Strategies and HP Enterprise Services may come back to haunt the DoD. Now that the GAO has found that DoD orders under civilian IDIQ vehicles are considered “civilian” for jurisdictional purposes, it seems clear that the $10 million threshold–not the new $25 million threshold–will govern protests of such orders once the 2017 NDAA takes effect.

It wasn’t a given that the GAO’s task and delivery order jurisdiction would be restored. Before adopting the conference bill, both House and Senate toyed with the idea of eliminating protests of task and delivery orders entirely. Bid protests serve an important function in the procurement process, as evidenced by the fact that 45% of protests in Fiscal Year 2015 resulted in relief for the protester (either a “sustain” decision or voluntary agency corrective action). Congress made the right call by restoring GAO’s jurisdiction to hear protests of large task and delivery orders.