Senate vote reinstates task order protests

It looks like the ability of companies to protest civilian task orders will be quickly reinstated. The Senate passed a bill Wednesday that restored the Government Accountability Office’s jurisdiction to hear such protests.

GAO’s authority had expired on Sept. 30.

The House had already passed HR 5995 in September, so now the only remaining step is for President Obama to sign the bill into law. The exact timing of that is unclear.

Once the law takes effect, companies can protests task order awards over $10 million, just as they could before Sept. 30. The bill also makes GAO’s authority permanent, so now it will line up with Defense Department task order contracts. That said, we’ll likely not be in this situation again unless Congress takes some sort of action.

GAO this week released a decision dismissing two protests because the contract in question was a civilian contract (OASIS) but the ultimate customer was the Defense Department. The protesters had argued that because DOD was the customer, GAO should still hear the protest. But GAO said it didn’t have the authority. But passage of the bill does not effect the decision.

There also are several other protests pending where the buyer is a defense customer, but the contract being used is a civilian vehicle. These also will likely be dismissed because if you look at an earlier GAO decision, the watchdog agency ruled that it needs to have jurisdiction at the time the protest is filed.

For example, today GAO released a decision dismissing HP Enterprise Services protest of a $104 million Alliant task order that went to CACI International to support DOD's Washington Headquarter Services. GAO said it didn't have jurisdiction.

And there is nothing in the language of HR 5995 that makes jurisdiction retroactive back to Sept. 30.

Of course, there is always a chance that someone will challenge GAO’s position, but we’ll have to wait and see about that.

So, this issue has now been resolved. Whether civilian or defense related, any task order worth more than $10 million can be protested. And this time, there is no sunset to the jurisdiction.

As I’ve said in previous posts, the ability to protest is an important one because it provides another layer of oversight. And when task orders can be worth hundreds of millions of dollars and even over $1 billion, a little extra oversight is a good thing.