With President Obama's signing of the National Defense Authorization Act for Fiscal Year 2011,
the Government Accountability Office's ("GAO") protest jurisdiction over Department of Defense ("DoD") task and delivery orders in excess of $10 million was extended until September 30, 2016.  Although GAO's jurisdiction over DoD orders was extended, GAO's jurisdiction over civilian orders remains scheduled to expire on May 27, 2011.

This partial extension of protest authority has left members of the procurement law community puzzled.  Why would Congress extend jurisdiction over protests against DoD orders, but fail to extend the same jurisdiction over protests against orders issued by civilian agencies?

The history of task and delivery order protest authority provides no reasoned basis for distinguishing between DoD and civilian agencies.  In 1994 the Federal Acquisition Streamlining
Act exempted from protest review such orders awarded by either DoD or civilian agencies.  Government contractors complained that this exemption allowed agencies to avoid competition

and other applicable legal requirements even when large dollars were at stake.  Congress agreed.  In 2008, Congress authorized GAO to review protests against order contracts in excess of $10 million.  As a result significantly more protests were filed at GAO from 2008 through 2010.  In light
of the increased pressure on agency resources and GAO that resulted, interested parties lobbied Congress to permit this protest authority to expire.  There was nothing to suggest, however, that Congress would let the authority expire for civilian order procurements only.

It now appears that the "partial jurisdiction" mystery has been solved.  The 2008 Defense Authorization Act contained two provisions, one controlling DoD procurements (amending Title 10 of the U.S. Code) and the other controlling civilian procurements (amending Title 41 of the U.S. Code).  The two provisions contained sunset clauses providing that supplemental protest authority would expire on May 27, 2011.

Knowledgeable Senate counsel recently explained to us that the Senate Armed Services Committee, which reported the bill, only has authority over DoD protests.  While the Senate Armed Services Committee extended the authority to September 30, 2016 for DoD order procurements, the plan was to expand the authority to include civilian order procurements with a vote on the Senate floor.  Unfortunately, the bill never made it to the Senate floor.

At this point, it is not clear if the Senate will take action to extend civilian order jurisdiction before it is set to expire on May 27, 2011.  Given that civilian agencies currently make major acquisitions through individual orders (in some cases involving hundreds of millions of dollars), Congress's failure to act will establish a significant gap in the ability to obtain meaningful review of large civilian acquisitions.

© 2011 Perkins Coie LLP