H. Rept. 114-779 - GAO CIVILIAN TASK AND DELIVERY ORDER PROTEST AUTHORITY ACT OF 2016114th Congress (2015-2016)
Committee Report
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114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-779
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GAO CIVILIAN TASK AND DELIVERY ORDER PROTEST AUTHORITY ACT OF 2016
_______
September 21, 2016.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Chaffetz, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 5995]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 5995) to strike the sunset on
certain provisions relating to the authorized protest of a task
or delivery order under section 4106 of title 41, United States
Code, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 1
Section-by-Section............................................... 3
Explanation of Amendments........................................ 3
Committee Consideration.......................................... 3
Roll Call Votes.................................................. 3
Application of Law to the Legislative Branch..................... 3
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 4
Statement of General Performance Goals and Objectives............ 4
Duplication of Federal Programs.................................. 4
Disclosure of Directed Rule Makings.............................. 4
Federal Advisory Committee Act................................... 4
Unfunded Mandate Statement....................................... 4
Earmark Identification........................................... 4
Committee Estimate............................................... 4
Budget Authority and Congressional Budget Office Cost Estimate... 5
Changes in Existing Law Made by the Bill, as Reported............ 5
Committee Statement and Views
PURPOSE AND SUMMARY
The Government Accountability Office (GAO) Civilian Task
and Delivery Order Protest Authority Act of 2016, H.R. 5995,
will make GAO's existing authority to hear protests related to
civilian task and delivery order contract awards over $10
million permanent. GAO's authority for civilian agency task and
delivery order contract awards over $10 million expires on
September 30, 2016. GAO has similar authority for the
Department of Defense (DOD) task and delivery orders over $10
million, but GAO's DOD authority is permanent.
BACKGROUND AND NEED FOR LEGISLATION
In 1994, the Federal Acquisition Streamlining Act (FASA)
was enacted in response to concerns that the federal
procurement process was too cumbersome and complicated.\1\ One
of the FASA reforms included an authorization for task and
delivery order contract awards and a limitation on contractors'
ability to protest certain allegations related to agencies'
issuance of task and delivery order contracts.\2\
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\1\Federal Acquisition Streamlining Act (FASA) of 1994, P.L. 103-
355, Sec. 1004, 108 Stat. 3253 (Oct. 13, 1994); see, e.g., James K.
Nagle, History of Government Contracting 506-507 (2d Ed. 1999)
(outlining the pre-FASA contracting environment).
\2\Federal Acquisition Streamlining Act (FASA) of 1994, P.L. 103-
355, Sec. 1004, 108 Stat. 3253 (Oct. 13, 1994).
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However, the National Defense Authorization Act for Fiscal
Year 2008 later authorized GAO to hear task and delivery order
contract awards over $10 million.\3\ GAO was given this
authority in response to concerns related to allegations of
waste, fraud, and abuse in contracts supporting military,
diplomatic, and reconstruction efforts in Iraq and
Afghanistan.\4\
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\3\National Defense Authorization Act for Fiscal Year 2008:
Conference Report to Accompany H.R. 1585, 110th Cong. 1st Sess., 956
(2007).
\4\See, e.g., Mason Alinger, Recent Developments in Task and
Delivery Order Contracting, 39 Pub Cont. L.J. 839, 839 (2010).
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In addition to these concerns, a 2007 Report to Congress by
the Acquisition Advisory Panel, which was established by the
Services Acquisition Reform Act (SARA) of 2003, recommended
that contractors be authorized to protest certain large task
orders or delivery orders.\5\ Senator Susan Collins (R-ME)
included GAO protest authority language in response to these
concerns in the Government Contracting Act of 2007 because
``providing contractors an opportunity to protest awards in
which agencies failed to follow appropriate processes will
result in more competitive and accountable procurements.''\6\
The Government Contracting Act of 2007 was not enacted, but
similar language was ultimately included in the National
Defense Authorization Act for Fiscal Year 2008.
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\5\See, e.g., Ralph C. Nash, Jr. & John Cibinic, Jr., Taming the
Task Order Contract: Congress Tries Again, 22 Nash & Cibinic Rep.
para.31, May 2008, at 75.
\6\See Accountability in Government Contracting Act of 2007: Report
on the Committee on Homeland Security and Governmental Affairs, U.S.
Senate, to accompany S. 680, 110th Cong., 1st Sess. 12 (2007).
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GAO's authority to hear protests related to civilian task
and delivery order contract awards was extended through
September 30, 2016 in the National Defense Authorization Act
for Fiscal Year 2012.\7\ With respect to GAO's DOD authority to
hear related task or delivery order contract award protests,
this authority was made permanent in the National Defense
Authorization Act of Fiscal Year 2012.\8\
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\7\P.L. 111-383, Sec. 825, 124 Stat. 4270.
\8\The sunset date for GAO's authority to hear Department of
Defense task and delivery orders over $10 million was removed in 2013.
See the National Defense Authorization Act of Fiscal Year 2013, P.L.
112-239, Sec. 830, 126 Stat. 1842 (Jan. 2, 2013).
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In order to ensure there is no gap in GAO's existing
authority to hear protests of civilian task and delivery order
contract awards over $10 million, H.R. 5995 will make this
authority permanent. This bill will also harmonize GAO's
current authority to hear protests for task and delivery order
contract awards over $10 million for the DOD and civilian
agencies. H.R. 5995 will ensure there is no disruption in GAO's
authority and make sure this process continues as an important
accountability mechanism in federal contracting.
LEGISLATIVE HISTORY
H.R. 5995, the GAO Civilian Task and Delivery Order Protest
Authority Act of 2016, was introduced on September 12, 2016 by
Representative Mark Meadows (R-NC) and referred to the
Committee on Oversight and Government Reform. Representative
Gerry Connolly (D-VA) is an original cosponsor. H.R. 5995 was
ordered reported by the Committee on September 15, 2016 by
unanimous consent.
Section-by-Section
Section 1. Short title
Designates the short title of the bill as the ``GAO
Civilian Task and Delivery Order Protest Authority Act of
2016.''
Section 2. Orders
Modifies section 4106(f) of title 41, United States Code,
to strike the sunset of the U.S. Government Accountability
Office's authority to hear civilian agency protests of task and
delivery orders over $10 million, thereby making this authority
permanent.
Explanation of Amendments
No amendments to H.R. 5995 were offered or adopted during
Full Committee consideration of the bill.
Committee Consideration
On September 15, 2016, the Committee met in open session
and ordered reported favorably the bill, H.R. 5995, by
unanimous consent, a quorum being present.
Roll Call Votes
No roll call votes were requested or conducted during Full
Committee consideration of H.R. 5995.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill strikes the sunset on certain provisions relating to
the authorized protest of a task or delivery order under
section 4106 of title 41, United States Code. As such this bill
does not relate to employment or access to public services and
accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal and objective of the bill is to strike the sunset on
certain provisions relating to the authorized protest of a task
or delivery order under section 4106 of title 41, United States
Code.
Duplication of Federal Programs
No provision of this bill establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that enacting this bill does not
direct the completion of any specific rule makings within the
meaning of 5 U.S.C. 551.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
At the time of this writing, the Committee had yet to
receive a formal cost estimate from the Congressional Budget
Office for H.R. 5995. The Committee asserts that the
legislation merely provides a continuation of existing
authority, with no new programs or associated spending, and
would have no significant budgetary effects.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has not
received a cost estimate for this bill from the Director of
Congressional Budget Office, and instead has included a
committee estimate in the section prior to this one.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets and
existing law in which no change is proposed is shown in roman):
TITLE 41, UNITED STATES CODE
* * * * * * *
SUBTITLE I--FEDERAL PROCUREMENT POLICY
* * * * * * *
CHAPTER 41--TASK AND DELIVERY ORDER CONTRACTS
* * * * * * *
Sec. 4106. Orders
(a) Application.--This section applies to task and delivery
order contracts entered into under sections 4103 and 4105 of
this title.
(b) Actions Not Required for Issuance of Orders.--The
following actions are not required for issuance of a task or
delivery order under a task or delivery order contract:
(1) A separate notice for the order under section
1708 of this title or section 8(e) of the Small
Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (c), a
competition (or a waiver of competition approved in
accordance with section 3304(e) of this title) that is
separate from that used for entering into the contract.
(c) Multiple Award Contracts.--When multiple contracts are
awarded under section 4103(d)(1)(B) or 4105(f) of this title,
all contractors awarded the contracts shall be provided a fair
opportunity to be considered, pursuant to procedures set forth
in the contracts, for each task or delivery order in excess of
$2,500 that is to be issued under any of the contracts,
unless--
(1) the executive agency's need for the services or
property ordered is of such unusual urgency that
providing the opportunity to all of those contractors
would result in unacceptable delays in fulfilling that
need;
(2) only one of those contractors is capable of
providing the services or property required at the
level of quality required because the services or
property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a
sole-source basis in the interest of economy and
efficiency because it is a logical follow-on to a task
or delivery order already issued on a competitive
basis; or
(4) it is necessary to place the order with a
particular contractor to satisfy a minimum guarantee.
(d) Enhanced Competition for Orders in Excess of
$5,000,000.--In the case of a task or delivery order in excess
of $5,000,000, the requirement to provide all contractors a
fair opportunity to be considered under subsection (c) is not
met unless all such contractors are provided, at a minimum--
(1) a notice of the task or delivery order that
includes a clear statement of the executive agency's
requirements;
(2) a reasonable period of time to provide a proposal
in response to the notice;
(3) disclosure of the significant factors and
subfactors, including cost or price, that the executive
agency expects to consider in evaluating such
proposals, and their relative importance;
(4) in the case of an award that is to be made on a
best value basis, a written statement documenting--
(A) the basis for the award; and
(B) the relative importance of quality and
price or cost factors; and
(5) an opportunity for a post-award debriefing
consistent with the requirements of section 3704 of
this title.
(e) Statement of Work.--A task or delivery order shall
include a statement of work that clearly specifies all tasks to
be performed or property to be delivered under the order.
(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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