Study to Determine the Impact of Bid Protests on Government Contracting

Its the time of the year when House and Senate committees are considering next fiscal year's National Defense Authorization Act. Right now, there are differences between the House and Senate versions and various committees are doing their "markups". Its impossible to predict the final version but it is interesting nonetheless to peer in and see what Congress is thinking.

One of the provisions that appears in the markup of the Senate Armed Services Committee is a requirement to study the GAO bid protest process. There's no doubt that some firms and individuals have abused the process and that it is costly from the Government's standpoint. However, there have been many "wrongs" that have been "righted" by the process.

Section 822 requires the Defense Department to contract out for a comprehensive study on the prevalence and impact of bid protests on DoD acquisitions including protests filed with contracting agencies., the GAO (Government Accountability Office), and the Court of Federal Claims (wouldn't it be ironic if the contract to perform the study was protested by an unsuccessful bidder?)

The study and accompanying report is to include the following elements.

1. A description of trends in the number of bid protests filed and the rate of such bid protests compared to contract obligations and the number of contracts.
2. An analysis of bid protests filed by incumbent contractors including (i) the ratee at which such protesters are awarded bridge contracts or contract extensions over the period that the protest remains unresolved, and (ii) an assessment of the cost and schedule impact of successful and unsuccessful bid protests filed by incumbent contractors on contracts for services with a value in excess of $100 million.
3. A description of trends in the number of bid protests filed and the rate of such bid protests on (i) contracts valued in excess of $3 billion, (ii) contracts valued between $500 million and $3 billion, and (iii) contracts valued between $50 million and $500 million and (iv) contracts valued under $50 million.
4. An assessment of the cost and schedule impact of successful and unsuccessful bid protests filed on contracts valued in excess of $3 billion.
5. An analysis of how often protesters win the protests contract.
6. A summary of the results of protests in which the contracting agencies took unilateral corrective action including (i) average time for remedial action and (ii) determination as to what extent such unilateral action was a result of a violation of law or regulation by the agency, or such action was a result of some other factor.
7. A description of the time it takes agencies to implement corrective actions after a ruling or decision

The report and related recommendations must be completed within one year of enactment of the NDAA. Although its possible that this provision of the draft NDAA may not make the final cut, it seems likely that it will since, at this point, its only a study.