New rule on task-order protests not causing problems, panel says

Officials find GAO workload hasn't increased significantly

Officials instrumental in the creation of the year-old federal task-order protest rule say the regulation has caused few problems and resulted in only a small increase in the number of cases sent to the Government Accountability Office for adjudication.

The 3-year-old law, which took effect in May 2008, permits contractors not selected for a task or delivery order to protest the award if it is greater than $10 million.

Roger Waldron, counsel at Mayer Brown LLP and a member of the Service Acquisition Reform Act  panel that proposed the regulation, said the overall goal of the protest rule and other recommendations was to improve government contracting.

“I think the government frankly just got sloppy over the past few years with its task-order authority and blocked any protest and oversight of those awards,” he said.

The idea behind the new rule, he added, was to provide transparency in another form of oversight and to make sure the government gets the best value for its money.

“I don’t think it’s been disruptive in terms of government operations,” he said.

“I think that the bid protests that you see have involved significant dollar values, fundamentally big programs in placing task orders for tens of millions of dollars, [and] I think it’s appropriate that there be this oversight,” he added.

Waldron was a panelist on a task-order protest rule discussion last week sponsored by the American Council for Technology and the Industry Advisory Council.

“We welcome the changes,” said Wanda Russell, acting program director of the National Institutes of Health Information Technology and Assessment Center.

“To date we have not received any protests, and I would attribute that to the level of communication we have with the vending community as well as our customers,” she said.

John Ghiloni, deputy office director for governmentwide acquisition contracts at GSA, said the new environment called for a reassessment of the GWAC program to help mitigate possible protests.

GSA expanded its existing scope review program to all of its contracts, including GWACs and the Alliant and Alliant Small Business contracts. The agency also revised its training programs for its program officers to cover protests and the debriefing process for customers, he said.

GSA is also revising its ordering guides for all its contracts, working closely with the agency’s inspector general, Ghiloni added.

“From what we’re observing, one of the main reasons [why] industry protests is just to get information," he said. "There is a perception out there that the only way you can find out what government is doing is in the discovery phase of protest."

“We found that if you do a thorough debrief with an industry partner after an award decision has been made, you can avoid that, and give them the information they need so they can improve their processes, which in a lot of cases is all they are after, gathering that data,” Ghiloni said.

“To date, as far as I am aware, there have not been many protests on Alliant or Alliant Small Business task orders. I don’t believe there have been many on our other GWACs,” he added.

In fiscal 2009, GSA obligated $1.4 billion for contractors, of which about 70 percent was through GWACs and about 22 new task-order awards, said Chris Hamm, operations director of GSA’s Assisted Acquisition Service at the Federal Systems Integration and Management Center.

“Of that, we had only one [task order] that was protested,” he said.

Hamm said the new protest rule has had no significant impact on GWAC delivery task orders, he said. But it has had a significant impact on acquisition planning.

“We’re very explicit now on which [Federal Acquisition Regulation] part we’re operating under and what the exact evaluation criteria are going to be, “Hamm said.

In addition, the rule also has helped eliminate a lot of the minute details of debriefings that included point-by-point analysis of each element of the task-order bid, he added.

Robert Burton, a partner at Venable LLP, was deputy administrator of the Office of Federal Procurement Policy when the law took effect last year. He said the Bush administration opposed it because of the potential for greater litigation.

“I don’t think there has been a huge surge in protests,” Burton said.

He said the new law is one of the most significant pieces of legislation of the decade and a paradigm shift because today “well over 50 percent of our procurement dollars are going to task and delivery orders – hundreds of millions of dollars.”

Burton said he hopes Congress will make the three-year law permanent.

Ralph White, assistant general counsel in the Procurement Law Division at GAO, said GAO closed 1,917 protest cases in fiscal 2009, including 139 task-order protests, or a 20 percent increase over the 1,582 protests closed in fiscal 2008, before the new law took effect.

“More than half of the protests we received, of the 139, were of task orders valued in excess of $50 million,” White said.

And of the 139 task-order protests, only two went through the full protest procedure and were sustained on their merits, he said.

“We’re not seeing anything that is dramatically different with task- and delivery-order [protests] than we saw with traditional protests,” White said, adding that that included the percentage of protests that were withdrawn before adjudication.

About the Author

David Hubler is the former print managing editor for GCN and senior editor for Washington Technology. He is freelance writer living in Annandale, Va.

Reader Comments

Fri, Dec 18, 2009 Michael Hardy Vienna, VA

The panel addressed only a single perspective: the increase in the number of protests. That is certainly one type of "problem" that may be caused by the law, but a hidden, and far more significant, issue for small business GWAC holders is the number of larger requirements that never make their way to small business GWACs because of this rule. Prior to this rule, non-protestability was a selling point of small business GWACs which suggest that the fear of protest was a factor in the minds of procurement professionals as they decided on strategies for major programs. It is impossible to know the frequency with which procurements are reduced to under $10M or schedules, BPAs and agency-specific vehicles are selected over GWACs because they are exempt from this rule, but it is naive to think it is never a consideration.

Tue, Dec 15, 2009

It's too bad these panelists don't think that a 20% increase in protests in one year is significant. It's huge and the one factor none of them discussed is cost. There is a very large increse in cost for the taxpayer and the suppliers on all of the programs that had a protest. Protests are also a growing risk of doing business with the government and that has a cost too.

Tue, Dec 15, 2009 Dave Clemens Auburn WA

It's unfortunate that this article fails to point out that these changes to the Federal Acquisition Regualtion DO NOT APPLY TO GSA SCHEDULE ORDERS. They apply to orders against GWACs (which are not Multiple Award Schedules), among other types of orders, but NOT TO FEDERAL SUPPLY SCHEDULE ORDERS.

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