Congress stretches deadline for DOD task order protests; civilian jurisdiction unclear

Federal acquisition authorities have extended contractors’ ability to file protests against task and delivery orders for more than five years — but only for contracts awarded by the Defense Department, Coast Guard and NASA and not by civilian agencies, according to a notice in the Federal Register dated July 5.

However, the terms of the expiration may be up in the air. An attorney who has reviewed recent developments regarding federal task order protest authority said that the July 5 notice appears to contradict recent assertions made by the Government Accountability Office about its ongoing and broad jurisdiction over such protests, extending beyond the current deadlines.

The debate represents the latest chapter in a long-running discussion about the GAO’s authority to adjudicate protests against task and delivery orders.

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It was not immediately clear whether the notice would overrule recent statements made by the GAO suggesting it would continue to have jurisdiction over civilian agency task order protests, and would even expand its jurisdiction.

Congress explicitly awarded authority to GAO in 2008 to handle protests filed for task and delivery orders of more than $10 million for all federal agencies, military and civilian. However, that authority was to expire May 27, 2011.

The Federal Register notice states that Congress, in the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, extended the deadline to Sept. 30, 2016, but only for Coast Guard, Defense and NASA.

The notice also states that the authority for civilian agency task order protests has expired.

“The sunset date for protests against the award of task or delivery orders by other federal agencies remains May 27, 2011," the notice states. "With this change, contractors will no longer be able to protest task or delivery orders awarded by agencies other than DOD, NASA, and the Coast Guard."

However, GAO on June 14 issued a decision that asserted an authority to continue to rule on all civilian task-order protests under laws that predated the 2008 measures, according to Sarah Graves, associate with the Husch Blackwell law firm, who wrote a company blog entry June 30 on the GAO decision.

“The GAO not only asserted the jurisdiction, but also asserted it to an even greater degree,” Graves said in an interview on July 5. She said the GAO claimed authority for all civilian task order protests with no size limit, for example.

The federal register notice appears to disagree with the GAO’s previous assertions, Graves said.

“It is a disagreement, I would say, with what the GAO said in its June 14 decision,” Graves said in the interview. “The notice does make a statement different from what GAO’s current understanding as reflected in its June 14 decision.”

“We will have to wait and see how GAO plays that out in future decisions and whether it continues to take on civilian task order agencies and whether it continues to exercise its jurisdiction or not,” Graves added.

Alan Chvotkin, executive vice president and counsel for the Professional Services Council, said the language in the Federal Register notice should be viewed narrowly and does not necessarily interfere with recent GAO statements. He agreed with Graves that GAO recently has asserted broad authority over civilian task order protests and in his opinion, GAO will be able to exercise that authority on an ongoing basis.

"Starting on May 28, there is no constraint on protests," Chvotkin said in an interview July 5.