Congress Changes Rules for DoD Task Order Protests At GAO

In late December 2024, Congress gave final approval to the Fiscal Year 2025 National Defense Authorization Act (NDAA). The President signed the bill into law on December 23, 2024.[i] More than seventy acquisition policy provisions were included in this year’s bill. One provision,  Section 885,[ii] shifted significantly from the version passed by House of Representatives and now provides two major changes in the coverage for protests at the Government Accountability Office (GAO) of DoD-only task orders issued under multiple-award contracts.

The first major modification raises the jurisdictional threshold at GAO for protests of DoD task and delivery orders from the current level of $25 million to $35 million, effective with new protests filed after the effective date of the law.[iii] Neither GAO nor DoD have reported on the dollar value of the protests filed at GAO applicable uniquely to DoD that met the then-$25 million, although GAO’s Fiscal Year 2024 annual bid protest report noted that “of the 1,706 (bid protest) cases closed in FY 2024, 346 are attributable to GAO’s bid protest jurisdiction over  (all agencies’) task or delivery orders placed under indefinite-delivery, indefinite-quantity contracts.”[iv]  However, a protest based on the ground(s) that the DoD task order increases the scope, period, or maximum value of the contract under which the order is issued is not precluded at GAO by any jurisdictional threshold.

The second major modification more fully addresses the topics raised by the title of the section – a “proposal for payment of costs,” and covers all protests filed at GAO challenging a DoD award. Under Section 885, GAO and DoD are required to submit to Congress within 180 days after enactment a proposal for a pilot program with the following three attributes:

1. A process for requiring unsuccessful protestors at GAO to reimburse DoD for costs incurred in processing the protests, using benchmarks for the average costs to DoD incurred based on the value of the protested contract;
2. An enhanced pleading standard for protests to meet before obtaining DoD’s administrative record in GAO protests; and
3. A process to repay a presumptive DoD contract awardee for lost profits during the time that a “stay” of performance is triggered by an unsuccessful protestor’s filing and remains in effect; lost profits would be calculated by determining the amount of profit the contract awardee would have earned if it had been able to perform during the term of the stay.

Each of these three elements will present significant definitional and operational challenges for the proposed pilot program.[v] For example, today there are no “pleading standards” beyond the prohibition on speculative protests. In fact, it is often the filing of the agency’s report that a protestor first gets the more complete picture of the agency’s source selection decision process, and that often generates supplemental protest filing based on that information. Frequently, however, when the protestor (and its counsel) gets the full agency report, the protest is withdrawn.

If the presumptive award winner is entitled to receive “lost profit” imposed because of the stay of performance, what happens if the protest is successful, and the presumptive award winner does not receive the contract? That could result in a windfall to the contractor. Of what if the agency determines to take corrective action and makes a new award decision, or cancels the solicitation?

Finally, what happens when the pilot program is submitted to Congress? The section is silent on what Congress will do with the recommendation, if anything.

We will be watching developments of these provisions over the next few months. In the interim, we encourage both GAO and the Department of Defense to solicit the input from the contractor community and the private bar during their development of the pilot program.

If you have any questions or need any additional information, please do not hesitate to contact the author at [email protected] or the Centre Law attorney with whom you normally work.

[i] Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025, Public Law 118- 159; December 23, 2025

[ii] Section 885: “Proposal for Payment of Costs for Certain Government Accountability Office Bid Protest”.

[iii] The jurisdictional threshold for protests of task orders from non-defense agencies remains at $10 million; for several years GSA has requested an increase in this $10 million threshold “to maintain parity” with the level applicable to the Department of Defense but Congress has not approved this request.

[iv] See “GAO Bid Protest Annual Report to Congress for Fiscal Year 2024,” B-158766, November 14, 2024, at page 5, footnote 4, available at https://www.gao.gov/assets/880/873086.pdf (last viewed Jan 3, 2025). Often the dollar value of the protest can be found in the individual protest decisions when a merits opinion is published by GAO.

[v][v] Section 827 of the Fiscal Year 2018 NDAA included a narrower requirement for DoD to assess the feasibility of requiring certain large contractors to reimburse DoD for the cost of processing unsuccessful GAO protests. DoD never completed the assessment, and Congress repealed the requirement via Section 886 of the Fiscal year 2021 NDAA.