Takeaways

Congress is concerned about the delays caused by bid protests that have been filed at both the GAO and the COFC.
Congress required DoD to study the “frequency and effects” of bid protests that have been first filed at the GAO and then the COFC.
DoD will also develop a plan to expedite bid protests for contracts valued at less than $100,000.

We have previously discussed Congress’ efforts to reform the bid protest process through recent National Defense Authorization Acts (NDAA). In the Fiscal Year 2017 NDAA, Congress mandated a review of the bid protest process for Department of Defense (DoD) acquisitions, which led to a nearly year-long research study by the RAND National Defense Research Institute (RAND). The Fiscal Year 2018 NDAA provided for a number of reforms to the bid protest system, including enhanced debriefing rights for protestors. Much of these enhanced debriefing rights were implemented on March 22, 2018, by a Class Deviation issued by DoD. This year’s NDAA signals Congress’ continued interest in reforming the bid protest system to enhance the efficiency of the acquisition system.

On August 2, 2018, the Fiscal Year 2019 NDAA was passed by the Senate, and it is now ready for White House approval. The FY 2019 NDAA directs DoD to generate a new study of bid protests that were filed at both the General Accountability Office (GAO) and the United States Court of Federal Claims (COFC). The RAND Study had found that more than 50 percent of the COFC protests had previously been filed at the GAO. The NDAA also requires DoD to develop a plan for an expedited bid process for small value contracts.

New Bid Protest Study

Section 811 of the FY 2019 NDAA directs the DoD to “carry out a study of the frequency and effects of bid protests involving the same contract award or proposed award that have been filed at both the Government Accountability Office and the United States Court of Federal Claims.”

This study will specifically seek to discern “(1) the number of protests that have been filed with both tribunals and results; (2) the number of such protests where the tribunals differed in denying or sustaining the action;” (3) the length of time from initial filing at either the GAO or COFC to a final decision by the respective bodies; “(4) the number of protests where performance was stayed or enjoined and for how long; (5) if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled; (6) separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded ...; (7) whether the protestor was a large or small business; and (8) whether the protestor was the incumbent in a prior contract for the same or similar product or service.”

This study will build on last year’s RAND study, which analyzed the DoD bid protest landscape. In particular, this study should provide a factual basis to determine whether a disappointed offeror’s ability to protest at the COFC after it is unsuccessful in protesting at the GAO unreasonably delays the acquisition process.

Expedited Protest Process for Small Value Contracts

Section 811 of the NDAA also calls for the development of an expedited bid protest process for DoD contracts valued at less than $100,000. This requirement implements one of the recommendations of the RAND Study, which found that almost 10 percent of bid protests involved contracts that did not exceed $100,000. Section 811 states that in developing such a process, the DoD may consult with both the GAO and the COFC “to the extent such entities may establish a similar process at their election.”

Conclusion

This new study should provide a factual basis for evaluating the delays caused by an unsuccessful GAO protester being able to then file a protest at the COFC. The study will also provide data to address the prevalence of incumbent service contractors filing protests at both forums in order to receive additional periods of contract performance while the protests are pending. Unfortunately, the study will not directly address the reasons why allowing such a delay to the procurement process might be warranted by other benefits to the acquisition process resulting from allowing both the GAO and COFC to consider a protest. With the study results focused on the amount of delay, this study may well lead to a provision in next year’s NDAA to abolish a contractor’s right to file protests at both the GAO and the COFC.