GAO authority over task order protests expires

The main congressional news that came out of the end of fiscal 2016 was that Congress passed a continuing resolution to keep the government running.

But what they didn’t do is also noteworthy. On Sept. 30, the Government Accountability Office’s authority to hear protests of task orders worth more than $10 million expired. I wrote about this possibility on Sept. 22.

For opponents of bid protests, this is a victory, but in today’s world, it is a blow to transparency and accountability.

The government increasingly relies on task order contacts to get their work done because they are efficient and easy to use.

In the early days of IDIQ contracts in the late 1990s and early 2000s, it was a rarity to see task orders worth more than $100 million. But not anymore.

We don’t bat an eye when there are task order awards worth hundreds of millions of dollars.

A scan of recent Washington Technology headlines shows Booz Allen Hamilton winning $379.6 million task order to combat IEDs. CACI International won a $104 million contract for IT support at the Pentagon. A $175 million Navy task order went to Imagine One Technology.

I’ve also followed several bid protests that involve even larger awards. For example, ManTech is protesting a $745 million task order award that went to CSRA.

Lockheed Martin just lost a bid protest of a $567.7 million task order that went to SAIC.

With the sunsetting of GAO’s jurisdiction, Lockheed Martin and ManTech wouldn’t have anywhere to go to try to get their grievances addressed if those contracts were awarded today.

Again, I’m sure there are those who will cheer this, but the loss of the right to protest does much more damage that it gains in efficiency.

Public information is scarce on task order contracts. (I've complained about this before.) Often, it is only when there is a bid protest that goes to a decision that you can find out any details about the procurement. If the company hasn’t published a press release, there often is no public disclosure of awards.

And this happens even though there are requirements to publish on FBO.gov. Those requirements just aren’t enforced.

Now, because Congress has allowed the protest jurisdiction to lapse, companies are losing an ability to protest, and we are losing transparency and oversight of the process. And again, we are talking about task orders worth hundreds of millions of dollars.

The sunset may well be temporary because the National Defense Authorization Act of 2017 is in conference, and my understanding is that the NDAA will reinsert the jurisdiction. Perhaps this time, they’ll make it permanent.

But that could take months to happen, so in the meantime, agencies will continue to award large task orders, and companies will have no choice but to accept the decision if it goes against them. And the rest of us will just left out in the dark.