Potential Changes at GAO in 2016
There are some big potential changes coming to the bid protest process at the Government Accountability Office (“GAO”) in 2016. It is possible that this year will bring a formalized electronic docketing system, a fee for filing protests, and a sunset on an important part of GAO’s bid protest jurisdiction.
GAO Docketing System and Fees
GAO’s plans to implement a new docketing system and filing fee for protesters have been ongoing since 2014. The Consolidated Appropriations Act of 2014 amended Title 31 of the United States Code to require that the Comptroller General establish “an electronic filing and document dissemination system.” H.R. 3547, Sec. 1501. In recent months, representatives from GAO have suggested that the new docketing system should be introduced sometime in 2016.
The Consolidated Appropriations Act of 2014 also authorized GAO to charge protesters a filing fee “to support the establishment and operation of the electronic system.” An early proposal suggested a filing fee of $240, but that was never implemented. More recently, an early version of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2016 included a proposal that the Comptroller General provide his views “on the likely impact of a provision requiring a losing protester on a contract for the procurement of a major defense acquisition program to pay the legal fees of the government.” S. 1376, Sec. 880(b)(6). This early version, however, was never approved. Instead, the President approved a separate Senate bill, S. 1356, which does not contain the above-quoted language. This latter President-approved bill is now the effective version of the NDAA for Fiscal Year 2016.
While not yet introduced, the new GAO docketing system and recent attempts to require fees associated with protests at GAO demonstrate that Congress is serious about streamlining the protest process and discouraging frivolous protests. Expect to see changes in these areas soon at GAO.
GAO Jurisdiction over Civilian Agency Task Order Protests
GAO jurisdiction over protests of task and delivery orders under Indefinite Delivery, Indefinite Quantity (“IDIQ”) contracts issued by civilian agencies is set to expire September 30, 2016. This means that unless Congress acts, there will be no forum at which contractors may contest the award of such orders as of October 1, 2016. With the value of orders issued under civilian IDIQ contracts increasing, the expiration of GAO’s jurisdiction would leave a major piece of government procurement, and committed taxpayer dollars, unreviewable.
The Federal Acquisition Streamlining Act (“FASA”) of 1994 prohibited protests related to task and delivery orders unless the protest alleged the order “increase[d] the scope, period or maximum value of the contract under which the order [was] issued.” 41 U.S.C. § 253j(e) (1994) (now, 41 U.S.C. § 4106(f)). In the NDAA for Fiscal Year 2008, GAO was granted jurisdiction over protests of task and delivery orders with a value above $10 million. The Act included a sunset provision under which the jurisdiction would expire in 2011. Congress extended the period of jurisdiction, but treated differently task and delivery orders issued by defense agencies (governed by Title 10) and orders issued by civilian agencies (governed by Title 41). Currently, there is no sunset provision applicable to task and delivery order protests related to defense procurements, but there is a sunset provision applicable to task and delivery order protests under civilian agency procurements. Under that sunset provision, GAO’s jurisdiction over task and delivery order protests of civilian agency procurements expires on September 30, 2016. Legislation introduced in the House in January 2016, but not yet acted upon, proposes to eliminate the sunset provision. H.R. 4341, Sec. 502 (Jan. 7, 2016). This would give GAO exclusive jurisdiction over task and delivery orders valued above $10 million issued by both civilian and defense agencies, making the treatment of such orders consistent.