The Section 809 Panel Recommends Substantial Changes to DoD Bid Protests
The Section 809 Panel, which is tasked with developing and providing recommendations to improve and enhance the efficiency of the Department of Defense procurement system, issued the third volume of its report and recommendations Jan. 15, 2019. Among the numerous recommendations for streamlining DoD acquisitions, several of which relate to bid protest practice, three in particular propose potentially significant changes to the DoD bid protest process, with the aim and constant challenge, of balancing the dual interests of ensuring accountability in the procurement process while managing or reducing the delay and disruption that protests invariably have on procurements. The notable recommendations are Recommendations 35, 67 and 69.
Perhaps the most potentially impactful recommendation is Recommendation 35. Among other things, this recommendation proposes changes that would deprive the Government Accountability Office and the U.S. Court of Federal Claims of both pre and post-award bid protest jurisdiction for acquisitions of “readily available” products or services in DoD acquisitions that are valued at $15 million or less. The term “readily available” differs from commercial items or commercial-off-the-shelf offerings. As proposed, “readily available” would mean “with respect to a product or service, . . . a product or service that requires no customization by the vendor and can be put on order by customers. Such term includes optional, priced features of products and services in a form that is offered for sale in the normal course of business.” Offerors would still have an option of protesting at the agency but the traditional forums for protests would be rescinded if this proposal goes through. Along with the already existing jurisdictional limits for certain task order protests, Recommendation 35, if implemented, would further curtail DoD protest options.
Another significant proposal is Recommendation 67. As proposed, this recommendation would preclude a contractor from filing a protest at GAO, and if unsuccessful there, to file again at the Court of Federal Claims. This so-called “second bite at the apple” approach has traditionally provided certain tactical and strategic advantages, given the differences between the two forums in terms of access to documents, standards of review (i.e., even though the standards are similar there are some differences), timelines, other procedures and importantly, the available remedy. For example, the court has injunctive powers while GAO, as an arm of Congress, does not. While the timing differences in the forums are addressed by the recommendation (the proposed change would align the timelines for filing protests at GAO and at the court to be the same), it is less clear how the other differences, legal or practical, will be handled. For example, what happens if the protester files at GAO, is denied relevant documents at GAO and decides to withdraw the protest without GAO issuing a decision? Would that protester then be precluded from filing a protest at the court where the standard for document production is broader? Does filing mean a merits decision? Recommendation 67 would also align the due date for decision to the same 100 days that GAO abides by. However, on this point, as a practical matter, this proposed change may not be as significant since the court, in recent years, has issued decisions within a timeframe comparable as GAO. But, this is still another change.
Finally, Recommendation 69 is yet another significant proposal. As proposed, this recommendation would require that in all required debriefings the DoD agency must provide a copy of the redacted source selection decision document and the technical evaluation document of the debriefed offeror. While DoD agencies already do this in large procurements valued at over $100 million as part of their enhanced post award debriefing procedures, this proposal would lower the threshold to apply to procurements valued at $10 million or more. The purpose of providing such information remains the same—to give disappointed offerors more information up front so that that they are able to make a more informed decision about whether to protest—but the proposed change is now intended to make such information available in more situations.
We will need to wait to see how the proposals play out and whether, and if so how, any changes are made before they are implemented. But, one thing seems apparent—the bid protest process appears to be tightening rather than expanding, so it is now more important than ever for disappointed offerors to fully understand the increasingly complex and nuanced procedural, tactical and strategic considerations when evaluating whether and where to pursue a bid protest.