As we reported on December 14, 2016, on December 8, the Senate passed the National Defense Authorization Act (NDAA) of 2017, which calls for changes to the Government Accountability Office’s (GAO) jurisdiction over civilian agency and Department of Defense (DoD) task order protests. The President has yet to take action on the NDAA. Separate legislation has, however, already restored GAO’s protest jurisdiction over civilian task orders valued above $10 million, leaving only the issue of the threshold for DoD task order protests contingent on the fate of the 2017 NDAA.
On the same day that President Obama was presented the 2017 NDAA, he signed into law H.R. 5995 – GAO Civilian Task and Delivery Order Protest Authority Act of 2016. In what may be the shortest bill ever signed into law, H.R. 5995 simply removed the sunset provision that terminated GAO’s jurisdiction over civilian agency task orders as of September 30, 2016. Therefore, as of December 14, disappointed offerors could once again protest civilian agency task orders valued above $10 million on grounds beyond allegations that the task order increased the scope, period, or maximum value of the underlying contract.
While H.R. 5995 has already restored GAO protest jurisdiction over civilian task orders, as we noted in our prior post if the pending 2017 NDAA becomes law, which is likely, it will raise the jurisdictional threshold for DoD task orders under 10 U.S.C. § 2304c from $10 million to $25 million. The 2017 NDAA was presented to President Obama on December 14, and he has ten days – excluding Sundays – to either sign or veto the bill. If he does neither, because the 114th Congress has not adjourned (it has pro forma meetings scheduled for the rest of December), the bill will become law without his signature.
That means time is likely running out for unsuccessful bidders to protest DoD task orders valued between $10 million and $25 million.
