2019 NDAA - Multiple Bid Protest Appeals of the Same Issue

The Defense Department recently floated a proposal to reduce frivolous protests or what some call "forum shopping" by limiting the ability of contractors who's protests were denied by GAO (General Accountability Office) to then continue their protest at the Court of Federal Claims. DoD wants to limit the so-called "second bit at the apple" to within 10 days of knowing they had a basis to protest.

The Professional Services Council (PSC) and others including a couple of Senators, have called the plan "premature" and warned that it would deny fair access to companies seeking relief from potentially unjustified awards.

In order to forestall DoD's push, the Senate included a provision in its version of the 2019 NDAA (National Defense Authorization Act) that, if passed, will require further study of the matter. Specifically, the provision (Section 811) would require DoD to carry out a study of the frequency and effects of bid protests involving the same DoD contract award or proposed award that have been filed at both the GAO and the Court of Federal Claims and to establish a data collection system to better track and analyze bid protest trends in the future.

The report must include

1. the number of protests that have been filed with both tribunals and the results
2. the number of such protests where the tribunals differed in denying or sustaining the action
3. the length of time, in average time and median time for the intitial filing at the GAO to decision in the US Court o Claims
4. if performance was stayed or enjoined, whether the requirement was obtained in the interim through another vehicle or in-house, or whether during the period of the stay or enjoining the requirement went unfulfilled
5. separately for each tribunal, the number of protests where performance was stayed or enjoined and monetary damages were awarded which shall include for how long performance was stayed or enjoined and the amount of monetary damages
6. whether the protestor was a large or small business
7. whether the protestor was the incumbent in a prior contract for the same or similar product or service.

DoD will have six months to complete the study.