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1 

99–010 

" ! SENATE 112th CONGRESS

1st Session 

REPORT

2011

112–16 

Calendar No. 41 

INDEPENDENT TASK AND DELIVERY ORDER 

REVIEW EXTENSION ACT OF 2011 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

TO ACCOMPANY

S. 498 

TO ENSURE OBJECTIVE, INDEPENDENT REVIEW OF TASK AND 

DELIVERY ORDERS 

MAY 9, 2011.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

MARK BEGICH, Alaska 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

SCOTT P. BROWN, Massachusetts 

JOHN MCCAIN, Arizona 

RON JOHNSON, Wisconsin 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

MICHAEL L. ALEXANDER, Staff Director 

BETH M. GROSSMAN, Deputy Staff Director and Chief Counsel 

TROY H. CRIBB, Senior Counsel 

CARLY A. STEIER, Professional Staff Member 

NICHOLAS A. ROSSI, Minority Staff Director 

MOLLY A. WILKINSON, Minority General Counsel 

ANNE F. TERRY, Minority DHS Detailee 

TRINA DRIESSNACK TYRER, Chief Clerk 


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Calendar No. 41 

112TH CONGRESS REPORT " ! SENATE 1st Session 112–16 

INDEPENDENT TASK AND DELIVERY ORDER REVIEW 

EXTENSION ACT OF 2011 

MAY 9, 2011.—Ordered to be printed 

Mr. LIEBERMAN, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. 498] 

The Committee on Homeland Security and Governmental Affairs, 

to which was referred the bill (S. 498) to ensure objective, independent review of task and delivery orders, having considered the 

same, reports favorably thereon with an amendment and recommends that the bill, as amended, do pass. 

CONTENTS 

Page 

I. Purpose and Summary .................................................................................. 1 

II. Background and Need for the Legislation ................................................... 1 

III. Legislative History ......................................................................................... 4 

IV. Section by Section Analysis .......................................................................... 4 

V. Evaluation of Regulatory Impact .................................................................. 5 

VI. Congressional Budget Office Cost Estimate ................................................ 5 

VII. Changes in Existing Law Made by the Bill, as Reported ........................... 6 

I. PURPOSE AND SUMMARY

S. 498, the Independent Task and Delivery Order Review Extension Act of 2011, extends through September 30, 2016 the authority 

of the Government Accountability Office (GAO) to hear protests of 

certain task and delivery orders—federal agency purchases made 

under umbrella contracts. Specifically, the bill extends the authority to hear protests of task and delivery orders in excess of $10 million awarded under Federal civilian agency contracts. 

II. BACKGROUND AND NEED FOR THE LEGISLATION

For more than 80 years, GAO has provided an objective, independent and impartial forum for the resolution of disputes conVerDate Mar 15 2010 06:32 May 10, 2011 Jkt 099010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR016.XXX SR016

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1The bid protest authority is codified at 31 U.S.C. §§ 3551 et seq. 

2Pub. L. No. 103–355. 

3Section 1004 of FASA prescribed procedures for task and delivery order contracts of the Department of Defense; section 1054 prescribed those procedures for civilian agency contracts. 4 E.g., GAO docket numbers B–254428, B–227340. In contrast, GAO viewed a protest concerning the issuance of a task or delivery order under a single, stand-alone contract to be generally a matter of contract administration, unless the protester was contending that the task 

order was beyond the scope of the underlying contract, thus changing the nature of the original 

contract. E.g., GAO docket number B–262800. 5The Panel was authorized by Section 1423 of the Services Acquisition Reform Act of 2003, 

which was enacted as section 1423 of the National Defense Authorization Act for Fiscal Year 

2004, Pub. L. No. 108–136. 6 Report of the Acquisition Advisory Panel to the Office of Federal Procurement Policy and 

the United States Congress (January 2007) (‘‘Report of the Panel’’). 7 Report of the Panel, pp. 9–11, 36. 

cerning the award of Federal contracts. Through what is known as 

the bid protest process, an interested party may ask GAO to review 

whether a contract has been, or is about to be, awarded improperly 

or illegally. GAO issues bid protest decisions not later than 100 

days from the date the protest is filed, providing a quick adjudicative process that ensures that Federal contracts are awarded fairly 

and in compliance with applicable statutes and regulations.1

In 1994, Congress passed the Federal Acquisition Streamlining 

Act (FASA) to provide greater flexibilities to agencies in their purchases of goods and services.2 FASA laid out specific procedures for 

the use of indefinite-delivery, indefinite-quantity (IDIQ) contracts, 

which allow agencies to negotiate contracts with broad statements 

of work and then procure goods and services through specific task 

and delivery orders as needs arise. FASA, though, limited GAO’s 

jurisdiction over protests of task and delivery orders to cases in 

which the protest alleged that the order increased the scope, period 

or maximum value of the contract under which the order was 

issued.3 Prior to FASA, GAO heard protests concerning task and 

delivery orders that were competed among multiple vendors holding contracts, regardless of value.4

In 2003, Congress created the Acquisition Advisory Panel 

(‘‘Panel’’) to review laws, regulations, and government-wide acquisition policies, and to make appropriate recommendations to improve, among other things, the effective, efficient and fair award of 

Federal contracts.5 The Panel issued its report in 2007.6 In the 

area of competition, the Panel found that IDIQ contracts provide 

significant benefits to the government, including reduced administrative costs for fulfilling recurring service needs. However, the 

Panel also found that agencies frequently use task and delivery orders to make significant purchases of complex services, and that 

the ordering process under task and delivery order contracts sometimes occurs without rigorous acquisition planning, adequate 

source selection, and meaningful competition. The Panel also heard 

evidence from GAO, Inspectors General and others concerning the 

improper use of IDIQ contracts. 

The Panel recommended that Congress expand GAO’s jurisdiction to hear protests of task and delivery orders beyond those related to scope, period and maximum value. Specifically, the Panel 

wanted GAO to have authority to consider whether agencies followed applicable statutes and regulations, including relevant competition requirements, when awarding task and delivery orders 

over $5 million.7


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8Section 203 of S. 680, 110th Congress, 1st Session, passed by the Senate on November 7, 2007. S. 680 set an initial threshold of $5 million for the protest of task and delivery orders 

but also would have provided the Administrator for the Office of Federal Procurement Policy, 

upon finding that the threshold was unduly burdensome, the discretion to increase the threshold 

to an amount no higher than $25 million. 9Section 843, National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110–181. 

10GAO docket numbers B–404263.6 (regarding a $2.6 billion task order awarded by the General Services Administration (GSA) for information technology support to the Department of 

Homeland Security for the St. Elizabeths campus); B–404671 (regarding a $1 billion task order 

awarded by the Department of the Army for the training of the Afghan National Police); and 

B–404682 (regarding a $2.5 billion task order awarded by the Department of State under GSA’s 

Alliant contract for consolidation of the Department’s information technology systems). 

The Committee agreed with the Panel’s assessment and recommendation and approved, as part of a larger acquisition reform 

bill, a provision authorizing the protest of task and delivery orders 

under both Department of Defense and civilian agency contracts.8

This provision, in amended form, was then enacted into law as part 

of the National Defense Authorization Act for Fiscal Year 2008.9

The authorization limited protests to task and delivery orders exceeding $10 million and included a three-year sunset, in order to 

allow Congress the opportunity to assess the impact of the protests 

on Federal procurement system before deciding whether to extend, 

or let expire, the authority. 

After reviewing the implementation of these provisions over the 

past three years, the Committee has concluded that Congress 

should reauthorize GAO’s expanded jurisdiction for another five 

years. An increasing amount of taxpayer money has gone to fund 

task and delivery orders. Such orders now commonly exceed $100 

million; indeed, GAO recently received protests of three task orders 

that each passed the $1 billion mark.10 Review of large task and 

delivery orders by GAO provides important oversight and discipline 

against abuse or other inappropriate use of IDIQ contracts, and the 

ability of interested parties to protest task and delivery orders promotes transparency, accountability, and competition in the expenditure of tax dollars through contracts. 

In considering the reauthorization of task and delivery order protests, the Committee has been sensitive to concerns that protests 

slow the procurement process, and can thereby burden agencies, 

contractors and taxpayers. The Committee must weigh this concern, however, against the benefits yielded by a process that ensures greater transparency, integrity and discipline in government 

contracting, and enforces the statutory requirements for competition. 

Just as importantly, data provided to the Committee by GAO 

show that GAO’s expanded jurisdiction has not brought with it an 

unwieldy increase in protests. In Fiscal Year 2009, GAO reviewed 

38 civilian agency task order protests, and in Fiscal Year 2010, it 

heard 65, representing challenges to far less than even one-tenth 

of one percent of all task and delivery orders awarded under civilian agency contracts. Moreover, even with GAO’s expanded jurisdiction to hear protests of task and delivery orders, the total number of protests filed at GAO in Fiscal Years 2009 and 2010, while 

higher than recent years, remains well below the number filed annually in the late 1980’s and early 1990’s. This is true despite the 

substantial increase in dollars expended by the U.S. government on 

contracts over the past decade, from $222 billion in Fiscal Year 

2001 to $536 billion in Fiscal Year 2010. 


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11Pub. L. No. 111–383. 

In considering GAO’s experience with protests of task and delivery orders thus far, the Committee concludes that extension of the 

authority is in the best interest of the U.S. government, contractors, and taxpayers. Section 825 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011,11 signed into law on 

January 7, 2011, has already extended the task and delivery order 

protest authority for Department of Defense contracts through September 30, 2016. S. 498 will align the authority for civilian contracts to the authority for defense contracts. The new sunset date 

will again provide Congress the opportunity to assess the effectiveness of the protest authority in five years. 

III. LEGISLATIVE HISTORY

On March 7, 2011, Senators Lieberman, Collins, McCaskill and 

Portman introduced S. 498, which was referred to the Senate Committee on Homeland Security and Governmental Affairs. The Committee considered the bill on April 13, 2011. The Committee adopted by voice vote an amendment offered by Senator Collins and then 

ordered the bill favorably reported, also by voice vote. Members 

present for both votes were Chairman Lieberman and Senators 

Levin, Akaka, Carper, Begich, Collins, Coburn, McCain, and Johnson. 

The amendment offered by Senator Collins makes clear that the 

bill does not authorize appropriations for the specific purpose of 

processing protests of task and delivery orders, and that such protests shall be processed using existing resources of GAO and Federal agencies. The Committee finds that GAO and agencies have 

been able to absorb the costs of processing and responding to task 

and delivery order protests into their existing budgets, and therefore specific authorization and appropriation of funds for this activity are unnecessary. 

IV. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Short title 

The short title of the bill is the ‘‘Independent Task and Delivery 

Order Review Extension Act of 2011.’’ 

Section 2. Extension of sunset date for certain protests of task and 

delivery order contracts 

This section extends the jurisdiction of GAO to hear protests of 

civilian task and delivery order contracts in excess of $10 million 

through September 30, 2016, allowing interested parties to seek 

GAO’s review of whether a task order was awarded in accordance 

with applicable laws and regulations. The extension of jurisdictional authority also allows protests of task and delivery orders of 

any amount on the ground that the order increases the scope, period, or maximum value of the contract under which the order was 

issued. 


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Section 3. Use of existing resources to process task and delivery 

order protests 

This section states that no amounts are authorized to be appropriated for the specific purpose of processing protests of task and 

delivery orders and that all such protests shall be processed using 

the existing resources of the Government Accountability Office and 

executive agencies. 

V. REGULATORY IMPACT AND EVALUATION

Pursuant to the requirements of paragraph 11(b) of rule XXVI of 

the Standing Rules of the Senate, the Committee has considered 

the regulatory impact of the bill. The Congressional Budget Office 

states that the bill contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandate Reform Act and 

would not affect the budgets of State, local, or tribal governments. 

The enactment of this legislation will not have significant regulatory impact. 

VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

APRIL 19, 2011. 

Hon. JOSEPH I. LIEBERMAN, 

Chairman, Committee on Homeland Security and Governmental Affairs, U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 498, the Independent Task 

and Delivery Order Review Extension Act of 2011. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 498—Independent Task and Delivery Order Review Extension 

Act of 2011 

S. 498 would amend federal law to extend the process for protesting the awards of certain civilian agency procurements. Under 

the legislation, contractors could protest certain task and delivery 

order contracts through September 30, 2016. In addition, the legislation would provide that no funds are authorized to be appropriated for processing protests made under the bill. 

Task and delivery order contracts authorize deliveries during the 

life of the contract without specifying a firm quantity of supplies 

or services. Such contracts are often used when an agency cannot 

determine the precise number of supplies or services that will be 

required. Under current law, contractors under such orders can 

protest the award of any order valued over $10 million, and the 

Government Accountability Office (GAO) has exclusive jurisdiction 

to hear those protests through May 2011. S. 498 would extend 

those procedures through September 2016. 

Information from GAO and several civilian agencies indicates 

that more than 100 cases have been filed to protest contract 

awards during the past two years; 50 percent of the protestors have 

reported obtaining some form of relief from the procuring agency. 


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The form of relief can vary from improvements in the procurement 

process to reimbursement of the protestors’ costs. Based on that information, CBO expects that complying with the bill would increase 

the administrative expenses of federal agencies for contract personnel, lawyers, and general administrative overhead. Such expenses would generally be paid from agencies’ salaries and expense 

budgets, which are subject to annual appropriation. CBO estimates 

that such costs would total a few million dollars over the 2011– 

2016 period. 

Enacting S. 498 also could affect direct spending by agencies not 

funded through annual appropriations, such as the Tennessee Valley Authority and the Bonneville Power Administration; therefore, 

pay-as-you-go procedures apply. CBO estimates, however, that any 

net increase in spending by those agencies would not be significant. 

Enacting S. 498 would not affect revenues. 

S. 498 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would not 

affect the budgets of state, local, or tribal governments. 

On March 16, 2011, CBO transmitted a cost estimate for H.R. 

899, a bill to amend title 41, United States Code, to extend the 

sunset date for certain protests of task and delivery order contracts. The two pieces of legislation are similar, and CBO’s estimate of their costs is the same. 

The CBO staff contact for this estimate is Matthew Pickford. The 

estimate was approved by Peter H. Fontaine, Assistant Director for 

Budget Analysis. 

VII. CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the following 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, new matter is printed 

in italic, existing law in which no change is proposed is shown in 

roman). 

Title 41. 

Section 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 (1)(B). 


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(3) EFFECTIVE PERIOD.—øThis subsection shall be in effect 

for three years, beginning on the date that is 120 days after 

January 28, 2008¿ Paragraph (1)(B) and paragraph (2) of this 

subsection shall not be in effect after September 30, 2016. 

Æ 


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