Defense bill might limit bid protests

As Congress works on the 2017 National Defense Authorization Act, several provisions are being debated that potentially will impact the bid protest process, and in a way that might hurt industry.

The Professional Services Council is voicing its opposition to two changes in a letter to House Armed Services Committee Chairman Mac Thornberry.

One provision will limit the ability of companies who lose a bid protest at the Government Accountability Agency and then file a lawsuit with the U.S. Court of Federal Claims. The amendment to the NDAA would prohibit this action and would apply to all government agencies -- not just the Defense Department.

PSC also is warning against the adoption of another amendment that would require losing protesters to pay certain costs of the winner in a protest dispute, almost always to the agency.

What PSC does support is a provision in the bill that would require DOD to review the bid protest process.

“Congress should wait for the results of this report before taking any further action,” PSC wrote in its letter.

In its letter to Thornberry, PSC reminds the congressman that Congress rejected a 2013 attempt to block access to the Court of Federal Claims. There are several significant differences between protests at GAO and at the Court of Federal Claims. The differences need to be studied, the group wrote.

Making losing bid protesters pay also is a bad idea because it undermines the purpose of bid protests to hold the government accountable. It would especially be a burden on small businesses, PSC wrote.

The review of the bid protest process in the bill calls for DOD to hire an outside consultant to study various aspects of bid protests and their impact. Among the areas to be explored are:

• Assessment of the incidence and duration of bid protests.
• Whether bid protests delay procurements.
• Do bid protests provide a financial benefit to incumbent contractors?

PSC wants Congress to get the results of the review before making any changes to the bid protest process. It makes sense. Hopefully, they’ll listen.

There is a love-hate relationship with bid protest, I think. We saw it in our recent Insider Report on contract debriefings.

A large number said that bid protests damage the relationship between contractor and customer, yet many said they will still file a protest if they felt they needed to. They feel they have little choice, and filing a bid protest because the quality of debriefings are so poor is often the only avenue they have to learn more about why their bid didn’t succeed. At the same time, agencies feel they can’t be more forthcoming because they are afraid if they say too much they are more open to a bid protest.

So, it is a little bit of a topsy-turvy world and probably needs reforms, but let’s study the issue first.