In a new rule announced yesterday, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction. For task orders issued by the Department of Defense, NASA, or the Coast Guard, the rule provides that GAO will have jurisdiction only over task orders “valued in excess of $25 million.”
For civilian agencies, GAO continues to have jurisdiction over protests of task orders “valued in excess of $10 million.” The rule also permanently repeals a pre-existing FAR clause that had set a September 30, 2016 expiration date on the ability to protest civilian agency task orders.
The new rule — codified as FAR 16.505(a)(10) — implements Section 835 of the National Defense Authorization Act for Fiscal Year 2017, which directed the FAR Council to establish the new DoD, NASA, and Coast Guard threshold. (The sunset date for protests of civilian agency task orders had previously been repealed by the GAO Civilian Task and Delivery Order Protest Authority Act of 2016.) According to the FAR Council, its new rule is designed to “follow the statute exactly.”
Procedural Traps for the Unwary
Contractors with indefinite-delivery/indefinite-quantity (“IDIQ”) contracts should be aware of the jurisdictional threshold for task order protests, which is one of many technical traps that can prevent disappointed offerors from challenging agency decisions — even when the agency decision is clearly contrary to law or irrational.
When considering a task order protest, a protester must take care to properly “value” the task order, using GAO-approved methods. Generally, GAO values task orders on the face of the order, even if the protester argues that the value of the order should have been higher under a proper cost realism analysis.
For example, GAO recently dismissed a post-award protest of an allegedly improper sole-source task order because it was under the $25 million threshold, rejecting the protester’s calculation that the task order was worth roughly $30 million. Erickson Helicopters, Inc., B-415176.3 et al., Dec. 11, 2017, 2017 CPD ¶ 378 at 10-12. GAO’s decision involved a close reading of the task order and its option periods, demonstrating that it can be difficult to properly determine the “value” of a task order.
Determining the value of a task order in a pre-award protest can be even murkier. One measure that GAO has considered is whether the proposals submitted in response to the solicitation exceeded the jurisdictional threshold. Goldbelt Glacier Health Servs., LLC – Recon., B-410378.3, Feb. 6, 2015, 2015 CPD ¶ 75 at 5 (citing ICI Servs., Inc., B-409231.2, Apr. 23, 2014, 2014 CPD ¶ 132 at 3).
Notably, even if a task order does exceed the $25 million threshold for DoD, NASA, and the Coast Guard, or the $10 million threshold for other civilian agencies, a protester can file its protest only at GAO, not at the Court of Federal Claims. On this point, the Federal Acquisition and Streamlining Act of 1994 is an independent bar on most task order protests at the court, excepting certain Federal Supply Schedule order protests and other less-common contract vehicles.
Out-of-Scope Task Orders Can Still Be Challenged at GAO or the Court
These jurisdictional restrictions do not apply, however, to protests that challenge a task or delivery order “on the grounds that the order increases the scope, period, or maximum value of the contract.” Such protests may be brought at either GAO or the Court of Federal Claims, without regard to the value of the order.