Contractors face prospect of no more task order protests

Come Sept. 30, the provision allowing companies to protest civilian task order awards worth more than $10 million will expire.

The House passed a bill this week lifting the sunset and making the provision permanent. It already is permanent for defense contracts.

But it’s not clear if the Senate will take up the bill or if there is support for it before Sept. 30.

The Senate version of the 2017 National Defense Authorization Bill eliminates the Government Accountability Office jurisdiction over protests involving defense task orders. Instead, the Defense Department would establish an ombudsman to hear task order protests.

But the House version of the NDAA makes the ability to file task order protests permanent for both civilian and defense task orders.

In other words, the House and Senate are polar opposites on this issue. The bill is in conference now and Congress is trying to iron out differences between the two versions.

According to a Bloomberg BNA interview with Ralph White, managing associate general counsel at GAO, the Defense Department tried the ombudsman approach in the 1990s, and it didn’t work. 

The proposed NDAA also includes other provisions such as making losing protesters pay GAO for the cost of the protest. Another idea that White spoke against in the BNA article: If this were to pass, GAO could end up with a financial interest in denying protests because the more protests it denies, the more money gets turned over to GAO. Or at least that could be the perception.

Obviously, there is a push to curtail the number of protests. The number of protests has risen over the years. And we see high profile contracts mired in delays because of multiple rounds of protests.

But there is scant evidence of frivolous protests. There are some, for sure, but they are extremely rare.

And if you look at the numbers, it is hard to make the case that bid protests are slowing down the overall procurement process.

In fiscal 2015, there were 631,000 contracts awarded, according to Deltek. But there were only 2,639 protests filed with GAO. That means that only 0.004 percent of contract awards are protested. I’ll admit that I might not have the right apples to apples comparison. I’m sure there are many transactions in that 631,000 number that could not be protested.

But that doesn’t change the fact that a miniscule amount of contract awards are ever protested.

So, is there a really problem with protests? I think so, but the answer isn’t to limit the ability of contractors to file protests.

Curtailing the ability to protest task orders will greatly diminish the transparency into the procurement process. And that’s a bad idea especially when you consider the size of some of these task orders. Just this month, I wrote about ManTech International filing a protest over a $745 million task order award to CSRA.

That’s a huge task order, and the Senate wants to take away ManTech’s ability to protest the award? That would be wrong.

The problem isn’t with the number of bid protests or who can be protested. The problem is happening much earlier in the procurement process.

Earlier this year, we published a WT Insider Report where we examined the quality of contract debriefings.

More than half of the respondents (52.9 percent) said they had filed bid protests because of they didn’t get enough information during the debriefing about why they lost the contract. When asked if they would file a protest again, 86.1 percent said yes.

And they are saying yes, even though 72.4 percent said they believe bid protests damage their long-term relationship with the customer.

The need for information on why they lost outweighs their concerns about the relationship with the customer.

So, the issue isn’t that there are too many bid protests. The issue is that a significant number of protests could be avoided if agencies were more transparent about how they make their procurement decisions and improved the quality of their debriefings.

Restricting the opportunities to file a bid protest won’t address the underlying problem. It’ll only make the procurement process more unfair and inefficient.