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GAO says 'No' to civilian protests

The Government Accountability Office has decided that companies cannot protest task orders awards under civilian contracts even when the ultimate buyer is a Defense Department customer.

GAO's jurisdiction to hear most protests of civilian task orders expired on Sept. 30. The "most" in the previous sentence is important; I’ll get to that later.

At the same time, task orders awarded under Defense Department contracts can still be protested.

But this raised a gray area that this week’s decision has resolved. There was a question of whether protests were still allowed if the ultimate buyer was a defense customer.

GAO ruled against Analytic Strategies LLC and Gemini Industries Inc., who argued that they should be allowed to protest being knocked out of the competition for an OASIS task order to support the Joint Improvised-Threat Defeat Agency. The value of the task order is between $126.1 million and $132.7 million.

Both companies filed their protests in October. A third company, BlueWater Federal Solutions, filed its protest in September, so that protest is still active because it occurred before the jurisdiction expired.

The companies argued that, because the buyer is a Defense Department agency, and because they are only using a civilian contract to get what they need, it really is a DOD task order, not a civilian one. They also argued that the protests should be allowed because the issue of jurisdiction would likely be resolved in less than 100 days, the time it usually takes GAO to rule on a protest.

But GAO said that the law was clear, and that it had no jurisdiction in this case.

There are several dozen similar protests of defense task order awards under civilian contracts. My expectation is that we’ll see more dismissals in the coming days and weeks as GAO clears these protests out.

The expectation also is that Congress will restore GAO’s jurisdiction when it passes the 2017 National Defense Authorization Act, but I’m not sure it will be a high priority during the lame duck session. That means we are probably looking at January at the earliest. But again, the question is how high of a priority is it.

Now for my comment about why I said “most” civilian task orders cannot be protested. Companies can still protest task orders that they think are out of scope of the contract or exceed the ceiling of the contract. Pretty narrow window, but it is still there.

Now, some may think limiting the ability to protest is a good thing, but I disagree. These are large task orders; some can be worth more than $1 billion. Not having the extra layer of oversight that a protest can bring is not a good.

Protests are a problem and do slow the procurement process down, but the dysfunction in the procurement process is what drives the large number of protests.

Many have told us that they protest because they learn so little information during debriefings. Limiting the ability to protest won’t solve problem at all.

Posted by Nick Wakeman on Nov 29, 2016 at 11:06 AM

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