PSC objects to DOD proposal for bid protest limits

The Professional Services Council is urging the Senate to reject a Defense Department proposal that would limit bid protests.

In a letter to the leaders of the Senate Armed Services Committee and the Senate Judiciary Committee, PSC lays out an argument that the Senate should resist DOD’s attempt to curtail what are called “second bite at the apple” protests.'

This is where a disappointed bidder goes through the protest process at the Government Accountability Office first and when they lose that attempt, they file a lawsuit at the Court of Federal Claims.

The trade group representing government contractors reminds the senators that they rejected similar proposals in 2013 and 2016. They also argue that there are several significant differences between GAO’s process and COFC’s.

“Both pre-award and post-award bid protests that should be fully and holistically explored before a significant change to only one element of the protest rules is made,” PSC wrote.

The DOD proposal also is premature, PSC said. They cited a Rand Corp. study commissioned by Congress as part of the 2017 National Defense Authorization Act that said more studies were needed for GAO protests that also go to the Court of Federal Claims.

PSC argues that it has found there are few such cases each year, “which does not justify such a significant legislative change.”

PSC also said DOD didn’t give the Armed Services Committee enough time to consider the proposal before it had to mark up the legislation.

The changes DOD is proposing “undercut the fundamental purpose of the bid protest process -- to hold agencies accountable for following the law and their procurement procedures in a transparent manner,” PSC said.

DOD's proposal also makes me think they are putting the emphasis on a symptom of a problem and not the problem. DOD should be asking Congress for more resources to conduct better procurements and better debriefings. But no one is asking me.