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Civilian Agency GAO Bid Protests for Task and Delivery Orders

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The authority of the GAO to hear bid protests regarding civilian agency task and delivery orders over $10 Million will expire on Sep. 30, 2016, unless the Congress acts to eliminate or extend the sunset provision of 41 USC 4106(f)(3).

I support 41 USC 4106(f)(3) as it is now written.  I support the sunset provision for protests to GAO on task and delivery orders for civilian agencies.  The task and delivery order ombudsman process of 41 USC 4106(g) will never become meaningful unless the sunset is allowed to occur -- and I want the ombudsman provision to become meaningful; therefore, I want the sunset to occur.  Accordingly, I oppose Section 502 of H.R. 4341, Defending America’s Small Contractors Act of 2016, because Sec. 502 would eliminate the sunset. 

Sunsets are beautiful, don’t you think?

 

Below is the pertinent text from H.R.4341 and 41 USC 4106:

 

Defending America's Small Contractors Act of 2016  H.R. 4341

Sec. 502. Protecting task order competition.

     Section 4106(f) of title 41, United States Code, is amended by striking paragraph (3).

 

Orders  41 USC 4106

(f) Protests.

     (1) Protest not authorized.  A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for:

          (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

          (B) a protest of an order valued in excess of $10,000,000.

     (2) Jurisdiction over protests.  Notwithstanding section 3556 of title 31, the Comptroller General shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

     (3) Effective period.  Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016.

(g) Task and Delivery Order Ombudsman.

     (1) Appointment or designation and responsibilities.  The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c).

     (2) Who is eligible.  The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the executive agency’s advocate for competition.

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I think that would have more of an effect in reducing protests than any $350 filing fee.  

The bulleted numbers below show task order protests as a percent and (actual number) of cases filed at GAO in FY 2011 and FY 2012 and as a percent of cases closed at GAO for FY 2013 through FY 2015:

  • In FY 11, 6% of cases filed (147),
  • FY 12, 8.4 % of cases filed (209),
  • FY 13, 10.2% of cases closed (259),
  • FY 14, 11.9% of cases closed (292),
  • FY 15, 12.7% of cases closed (335).

The cases filed and cases closed are developed by GAO and shown in that manner. 

I wonder how many task order complaints have been filed with competition advocates where GAO has no jurisdiction.

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Thanks for the numbers -- if I'm reading it correctly, 12.7% of all protests filed in FY2015 were task order protests?

I don't have any empirical evidence, but I suppose maybe zero task order complaints have ever been filed with an agency ombudsman -- I have never heard of any such happening in all my years.  That's part of my thought process -- the role of task and delivery order ombudsman is meaningless so long as the GAO hears the protests -- but if the Congress allows the protest possibility for civilian agencies to sunset, then maybe the role of task and delivery order ombudsman can actually become meaningful.

I wonder if anyone else has ever heard about a multiple-award IDIQ contractor sending a complaint to an agency task and delivery order ombudsman?

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From the contractor side, we have done it once. It was mainly a worthwhile process. The ombudsman backed the original decision. When it got to GAO the government elected to do a corrective action. The only reason we went this route was an attempt to avoid a public protest.  I also think there is general belief that the ombudsman process cuts into the GAO timeline. Its not correct, but that view make some see the ombudsman process as a risk. 

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