Senate’s Proposed FY2019 NDAA Includes No Major Bid Protests Reforms (Despite DoD’s Request for Legislation to Curtail Second-Bite Protests)
It seems like a yearly ritual. The U.S. Senate Armed Services Committee (“SASC”) drafts and passes a version of the annual National Defense Authorization Act (“NDAA”) that includes reforms aimed at curtailing bid protests, while the House Armed Services Committee (“HASC”) drafts and passes a version of the NDAA that omits these bid protest reforms. Every year, the majority of the reforms in Senate are eliminated during the conference committee process. However, the FY2019 NDAA appears to be headed towards a break in this yearly ritual.
On June 5, 2018, the SASC introduced its version of the FY2019 NDAA to the Senate. For the first time in several years, the SASC’s proposed version of the FY2019 NDAA does not contain any major reforms to limit bid protests. The SASC’s proposed FY2019 NDAA (Section 811) contains only a few provisions aimed at bid protests, neither of which would limit bid protests. Both provisions appear to be related to findings in RAND’s 2018 report of DoD bid protests:
- The SASC proposed a provision that would require the Secretary of Defense to carry out a study of the frequency and effects of bid protests involving the same Department of Defense (“DoD”) contract award or proposed award that have been filed at both the Government Accountability Office (“GAO”) and the Court of Federal Claims (“GAO”), and establish a data collection system to better track and analyze bid protest trends in the future.
- The SASC proposed that the Secretary of Defense develop a plan and schedule for an expedited bid protest process for DoD contracts with a value of less than $100,000. According to the SASC, this type of process “would be akin to a traffic court, would help resolve smaller and generally simpler cases commensurate with their value while preserving the right to an independent protest.“
As to the first provision, RAND noted in its 2018 bid protest study that it lacked adequate data to definitively analyze the rate at which protests appear at both GAO and COFC involving the same procurement. RAND recommended several potential changes to data collection and reporting that could be considered to aid future research and decision-making concerning bid protest reforms, the majority of which were aimed at data collection efforts that could be made by the COFC.
It is possible that this call for a new bid protest study might really be targeted at obtaining data to support the future reforms to curtail second-bite bid protests (i.e., protests filed at COFC after the protest was first filed and decided at GAO). Apparently, the DoD requested that the SASC include a provision in its proposed FY2019 NDAA prohibiting second-bite bite protests, but this reform was opposed by the Professional Services Council (and has consistently been opposed by the contracting community over the years), and apparently did not make it into the SASC’s proposed bill. If this proposed study is really aimed at obtaining data to support future limits on second-bit protests, it should be remembered that the last time a study was performed to obtain data that to support reforms limiting bid protests that study did not end up turning out how DoD likely expected.
The second provision appears to be in direct response to RAND’s surprise finding “that roughly 8 percent of GAO protest actions and nearly 4 percent of protest cases at COFC concerned procurements with a declared value under $0.1 million,” and RAND’s recommendation that a “streamlined processes be considered for protests under $0.1 million (or some other suitably low value)—perhaps processes analogous to how traffic tickets are adjudicated in traffic court or how cases are adjudicated in small-claims court.”
Check back for future updates as the FY2019 NDAA legislation progresses through Congress.