Unless protest provisions are reinstated, task orders losers are stuck
By
Nick Wakeman
Congress let the protest provision for civilian task orders lapse, and now we are likely to see hundreds of millions in awards go through without the oversight of a bid protest.
ESC Federal’s protest of a Navy task order awarded to Accenture is pretty straight-forward.
Both were competing for what the Navy calls “enterprise resource planning enhancement and upgrade support services." Accenture won the task order worth just under $29 million.
The work was competed under the Navy’s Process Improvement Reengineering Management and Data Support Services 2 contract.
In its protest, ECS says the evaluation was not done properly. If it had been done properly, ECS would have won, not Accenture.
As I said, pretty straight forward.
But what makes this protest worth paying attention to is that if this had been a task order award for say, the Commerce Department or any other civilian agency, ECS would have been stuck. No matter how wronged they felt they had been, they’d have no recourse. Because Congress failed to act before the end of the fiscal year, the authority lapsed that gave GAO jurisdiction to hear protests of task orders worth more than $10 million.
It only applied to civilian awards. For defense task orders, the authority was made permanent some time ago.
Some of the opposition to the provision is a desire to reduce the number of bid protests.
But given that some task orders have values in the hundreds of millions of dollars, it isn’t a good idea to cut off the ability of companies to protest.
There are legitimate concerns about the number of bid protests, but as I’ve said before, the solution isn’t to curtail the ability to protest. The focus should be on improving the procurement process starting with debriefings.
As I’ve written before, more than half of the respondents to a survey for a WT Insider report on debriefings said they had filed protests because they needed more information on why they lost. Without the protest, they would never know.
You also need to look at what’s behind the high number of corrective actions that agencies take after a protest is filed. In over 40 percent of the cases, agencies pull back the original award and take a second look at their award decision.
Before fiscal 2016 came to an end, there was progress toward making the task order protest permanent, so this period without it is likely temporary. But it’ll be several months before it gets reinstated, and that means we’ll see hundreds of millions in task orders awarded without the oversight of the bid protest.
We can only hope that nothing egregious happens.