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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.

Posted by Nick Wakeman on Apr 27, 2016 at 11:47 AM


Reader Comments

Tue, Jun 7, 2016 KEVEN BARNES CALIFORNIA

The GAO are a Racketeering Operation that Congress has covering up for the white collar criminal activity and Racketeering Influenced Corrupt Organization as defined by the Act ( 2 convictions of the organization in 10 years ) The Department of Defense is a RICO Organization and the GAO are to cover up for their criminal activity. Violating the Small Business Act is the No 1 Reason GAO Protests are filed. Were it not for Obama's OFPP Joseph Jordan violating the Procurement Integrity act and his Executive Ethics and Integrity violations, then 3 U.S. Small Businesses ( Aerosage LLC, FITNET, and Latvian Connection LLC ) being illegally suspended by FEDBID following 3 meritious protests ( B-409627 and B-41000) then Latvian would not have had to file 500 GAO Protests to prove we were right B-410947 and B-410981. Our Protests have removed 100 corrupt contracting officers. The DoD is Corrupt to the core of the Pentagon. The State Department and Board of Broadcasting Governors are not posting solicitations to the Official Government Point of Entry www.fbo.gov FEDBIZOPPS and the Navy is concealing solicitation in NECO, the Army used ASFI, but our B-411489 removed that bid-rigging website. Acquisition Reform means all solicitations are competed and posted on FEDBIZOPPS. Reform means that all solicitations with a value of between are set aside when the value is between $ 3,000 and $ 150,000; Sources Sought are conducted; no bundling or consolidation without the removal of the General Officer in charge of the Agency being retired as a penalty and a loss of 5% of that Agencies budget for every consolidated contract. Contracting Officers that violate the Small Business Act are suspended for 6 months and are investigated by the Department of Justice when they fail to set aside solicitations; fail to fill out the DD Form 2579 (AUG 2015 ); award a Small Business Contract with a value of between $ 3,000 to $ 150,000 to a foreigh or large business; post a solicitation for less than 15 days. USG stops using Bid Rigging FEDBID Reverse Auctions and all Executives that did use it are removed from Office - they are already corrupted and compromised and will be looking for the next SHILL game to rip on U.S. Small Businesses. Pentagon - no more sole sources. For Every Sole Source there willl be loss of 2% of the budget for the following 5 years. That will shrink the budget.

Thu, Apr 28, 2016

I wonder if our members of congress would consider having the agencies pay the bidders when the evaluators don't follow Section L&M as they have written. Its time to stop blaming the contractors and to fix acquisition. Its broken beyond repair and it is truly laughable when you look at the mistakes that are made.

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