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100s of millions in task order protests face risk of dismissal

There are about a dozen protests worth hundreds of millions of dollars pending at the Government Accountability Office that likely will be dismissed. Not because they lack merit but because GAO’s jurisdiction over most civilian task orders has lapsed.

The sunsetting of that authority is relatively well known. Congress failed to act before the end of the fiscal year to make the protest authority permanent as it is for defense contracts.

But a new twist came to my attention as I was pursuing more details about CACI International’s $1.8 billion task order to support the Joint Improvised-Threat Defeat Organization.

While AECOM has decided not to protest the award, there is a strong possibility that they wouldn’t have been able to protest even if they wanted to.

Here is the issue:

It is clear that task orders issued by a civilian agency against a civilian IDIQ cannot be protested because the law expired Sept. 30 that gave GAO jurisdiction over protests of task orders over $10 million. This applies to all federal agencies that are authorized under Title 41 of the U.S. code.

Defense and NASA IDIQ contracts can still see their task orders protested because they are Title 10 agencies. So obviously we’ll continue to see protests of defense task orders and task orders issued against the NASA SEWP contract. Veterans Affairs task order contracts also can still be protested because VA is authorized under Title 38.

But things get much murkier when it is a task order for a defense customer issued against a civilian IDIQ.

There are about a dozen protests pending at GAO right now that fall into that crossover category, where a defense agency used a GSA contract such as Alliant or OASIS to hire a contractor.

For example, HPE Enterprise Services is protesting a $102 million OASIS task order that went to CACI to support the Defense Department’s Joint Service Provider.

Wyle is protesting a $200 million OASIS task order that Booz Allen Hamilton won to support the Navy.

I’ve talked with several lawyers who handle a lot of bid protests and, being lawyers of course they can make the argument either way. As one told me, he has clients potentially on both sides of the issue.

Several told me that they lean toward the thinking that if the ultimate customer is at DOD, then the protests should be allowed to move forward. But they also acknowledged that a strict reading of the law likely means that GAO doesn’t have jurisdiction.

And because of the language in the law, there might not be a single ruling that fits all cases. It might come down to who actually runs the procurement.

For example, you might have an Air Force contracting officer using OASIS directly to award a task order. That scenario might be protestable. Might.

But if the Air Force asked GSA to provide a contracting officer to run the procurement, then it is a strong possibility that GAO doesn’t have jurisdiction.

From everyone I’ve talked to, my sense is that GAO will decide that it does not have the authority to hear the protests, so the pending protests will be dismissed.

My understanding is that GAO will issue its decision sometime over the next week.

So if GAO says, No more task order protests, what kind of recourse do companies have if they feel they were wronged?

Companies will still be able to file a protest with GAO if they think the task order is outside the scope of the contract or if the task exceeds the ceiling value of the contract.

Companies can still file an agency level protest or they can go to the agency task order ombudsman but those aren’t great options.

They can’t go to the Court of Federal Claims because the law doesn’t give the courts the authority to hear a protest of a task order.

In all likelihood, GAO’s lack of jurisdiction will be short-lived. Once Congress is back in session they are expected to make the jurisdiction permanent. But how long that will take is anyone’s guess.

But this is an important issue. To me it is reasonable that a task order worth more than $10 million can be protested. And when you look at the size of some of the task orders today, it is borderline ridiculous that that can’t be protested.

Hopefully, Congress will act quickly but in the meantime we have to hope for the best.

Posted by Nick Wakeman on Nov 04, 2016 at 1:38 PM


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