Congress stretches deadline for DOD task order protests; civilian jurisdiction unclear

Federal acquisition authorities have extended contractors’ ability to file protests against task and delivery orders for more than five years — but only for contracts awarded by the Defense Department, Coast Guard and NASA and not by civilian agencies, according to a notice in the Federal Register dated July 5.

However, the terms of the expiration may be up in the air. An attorney who has reviewed recent developments regarding federal task order protest authority said that the July 5 notice appears to contradict recent assertions made by the Government Accountability Office about its ongoing and broad jurisdiction over such protests, extending beyond the current deadlines.

The debate represents the latest chapter in a long-running discussion about the GAO’s authority to adjudicate protests against task and delivery orders.

Related stories:

GAO decides it has authority to rule on filed protests

GAO rejects limits on task order reviews

It was not immediately clear whether the notice would overrule recent statements made by the GAO suggesting it would continue to have jurisdiction over civilian agency task order protests, and would even expand its jurisdiction.

Congress explicitly awarded authority to GAO in 2008 to handle protests filed for task and delivery orders of more than $10 million for all federal agencies, military and civilian. However, that authority was to expire May 27, 2011.

The Federal Register notice states that Congress, in the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, extended the deadline to Sept. 30, 2016, but only for Coast Guard, Defense and NASA.

The notice also states that the authority for civilian agency task order protests has expired.

“The sunset date for protests against the award of task or delivery orders by other federal agencies remains May 27, 2011," the notice states. "With this change, contractors will no longer be able to protest task or delivery orders awarded by agencies other than DOD, NASA, and the Coast Guard."

However, GAO on June 14 issued a decision that asserted an authority to continue to rule on all civilian task-order protests under laws that predated the 2008 measures, according to Sarah Graves, associate with the Husch Blackwell law firm, who wrote a company blog entry June 30 on the GAO decision.

“The GAO not only asserted the jurisdiction, but also asserted it to an even greater degree,” Graves said in an interview on July 5. She said the GAO claimed authority for all civilian task order protests with no size limit, for example.

The federal register notice appears to disagree with the GAO’s previous assertions, Graves said.

“It is a disagreement, I would say, with what the GAO said in its June 14 decision,” Graves said in the interview. “The notice does make a statement different from what GAO’s current understanding as reflected in its June 14 decision.”

“We will have to wait and see how GAO plays that out in future decisions and whether it continues to take on civilian task order agencies and whether it continues to exercise its jurisdiction or not,” Graves added.

Alan Chvotkin, executive vice president and counsel for the Professional Services Council, said the language in the Federal Register notice should be viewed narrowly and does not necessarily interfere with recent GAO statements. He agreed with Graves that GAO recently has asserted broad authority over civilian task order protests and in his opinion, GAO will be able to exercise that authority on an ongoing basis.

"Starting on May 28, there is no constraint on protests," Chvotkin said in an interview July 5.

About the Author

Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.

The Fed 100

Read the profiles of all this year's winners.


  • Then-presidential candidate Donald Trump at a 2016 campaign event. Image: Shutterstock

    'Buy American' order puts procurement in the spotlight

    Some IT contractors are worried that the "buy American" executive order from President Trump could squeeze key innovators out of the market.

  • OMB chief Mick Mulvaney, shown here in as a member of Congress in 2013. (Photo credit Gage Skidmore/Flickr)

    White House taps old policies for new government makeover

    New guidance from OMB advises agencies to use shared services, GWACs and federal schedules for acquisition, and to leverage IT wherever possible in restructuring plans.

  • Shutterstock image (by Everett Historical): aerial of the Pentagon.

    What DOD's next CIO will have to deal with

    It could be months before the Defense Department has a new CIO, and he or she will face a host of organizational and operational challenges from Day One

  • USAF Gen. John Hyten

    General: Cyber Command needs new platform before NSA split

    U.S. Cyber Command should be elevated to a full combatant command as soon as possible, the head of Strategic Command told Congress, but it cannot be separated from the NSA until it has its own cyber platform.

  • Image from Shutterstock.

    DLA goes virtual

    The Defense Logistics Agency is in the midst of an ambitious campaign to eliminate its IT infrastructure and transition to using exclusively shared, hosted and virtual services.

  • Fed 100 logo

    The 2017 Federal 100

    The women and men who make up this year's Fed 100 are proof positive of what one person can make possibile in federal IT. Read on to learn more about each and every winner's accomplishments.

Reader comments

Please post your comments here. Comments are moderated, so they may not appear immediately after submitting. We will not post comments that we consider abusive or off-topic.

Please type the letters/numbers you see above

More from 1105 Public Sector Media Group