[House Report 114-779]
[From the U.S. Government Publishing Office]


114th Congress    }                                  {        Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                  {         114-779
======================================================================
 
   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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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




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SUBTITLE I--FEDERAL PROCUREMENT POLICY

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CHAPTER 41--TASK AND DELIVERY ORDER CONTRACTS

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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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