Senate backs down from attempt to restrain bid protests, but wants more data

Advocates and defenders of the federal bid protest process received some welcome news last week as part of the House-Senate agreement on this year’s National Defense Authorization Act. The final deal stripped two key Senate provisions that were seen as hostile to the protest process.

In a major reversal from the Senate’s earlier position, NDAA conferees agreed to give the Government Accountability Office permanent jurisdiction to hear and decide bid protests of any task order worth more than $10 million. GAO’s earlier authority to hear challenges to individual orders on major multiple-award contract vehicles like Alliant, EAGLE 2 and OASIS was only temporary, and lapsed entirely at the end of September.

Meanwhile, the Senate passed a standalone bill on Wednesday that would do much the same thing, granting GAO permanent jurisdiction over civilian agency task orders. The bill went to President Barack Obama for his signature after earlier passage by the House.

“This is a common-sense policy that I am thrilled to see pass the Senate,” Rep. Mark Meadows (R-N.C.), one of the bill’s sponsors said in a statement. “In the federal government’s issuing of contracts, transparency and fairness are always standards we should strive toward, and we are now one step closer to updating our laws and ensuring that civilian award protests can continue.”

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GAO already had permanent authority to hear protests to task orders on Defense Department contract vehicles; in this week’s NDAA agreement, Congress moved to increase the threshold for those protests to $25 million.

The Senate’s original Defense authorization bill would have done nothing to reinstate task order protest jurisdiction over civilian agencies, and could have made Defense cases harder to bring to GAO as well. It would have barred those protests entirely “if the Secretary of Defense has appointed an ombudsman … to review complaints related to task order and delivery contracts.”

The agreement came just days after GAO itself issued legal opinions saying it no longer had any authority over even some task orders dealing with Defense agencies.

In a Nov. 28 decision, the office ruled it had no legal authority to hear a challenge to a task order for mission support services at DoD’s Joint Improvised-Threat Defeat Agency, because the underlying contract vehicle was administered by the General Services Administration and fell under the authorities that sunset in September. GAO dismissed a similar protest two days later, saying it couldn’t hear a challenge to a task order providing IT support services to DoD because the order was issued under GSA’s Alliant multiple award contract.

However, last week’s votes on Capitol Hill don’t necessarily mean that Congress is finished tinkering with the bid protest process. The NDAA agreement did eliminate another Senate proposal that would impose a “loser pays” principle in Defense bid protests, requiring companies to pay all the costs of a protest if GAO denied all the elements, but the conferees replaced it with a demand for a detailed report on the protest process, suggesting more legislating is in the offing.

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The soup-to-nuts analysis must be compiled by an “independent research entity” and paid for by DoD. Among many other things, Congress wants to know

  • The extent to which program managers are structuring their acquisitions simply to avoid bid protests at the expense of potentially better programs
  • Whether the bid protest system affects DoD’s decision to use Lowest Price Technically Acceptable criteria in making contract awards
  • Whether protests influence program managers’ decisions to exercise options on existing contracts, make multiple award contracts or encourage teaming
  • Data on trends in the number of bid protests for both new contracts and task orders
  • An analysis of protests filed by incumbent contractors
  • Information on the quantity and quality of information contractors receive both before and after awards, and whether that affects their decision to file a protest

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