Senate bill would hit protest bug with a sledgehammer

Contractors lose the bulk of award protests. But Congress seemingly exists to discover problems and fix them.

At sleepovers with my cousins as a kid, we’d scare one another in the dark by wiggling a hand over an upturned flashlight. It would look like a giant, horrible spider coming down from the ceiling.

To some extent, contractors and contracting officers see bid protests as a big, awful problem. Now the Senate is trying to kill the spider, or at least scare it into the corner,  with a sledgehammer.

Protests can be annoying and time consuming, for sure. But statistically they are not a big deal. No one knows for sure how many contract actions the government takes every year, but it numbers in the millions. Spending a half trillion dollars takes a lot of work.

Yet contractors filed only about 2,500 protests in 2015. The Government Accountability Office, which has initial jurisdiction over protests, says that while protests are up 125 percent relative to 15 years ago, they’ve been steady for the past four years. One factor in the jump: In 2007 Congress gave GAO the authority to hear protests of task orders awarded under governmentwide acquisition contracts.

Contractors lose the bulk of protests. The workload on GAO is smaller than you might think given that 2,500 number. GAO says, “Most protests are dismissed, withdrawn by the protester, or settled prior to GAO issuing an opinion.” GAO ends up actually deciding 22 percent of cases; 80 percent of these go the government’s way.

But Congress seemingly exists to discover problems and fix them. The Senate 2017 National Defense Authorization bill would take away GAO jurisdiction over DOD task orders and give them to  an ombusdman in the department. It would make losing protesters pay costs.  Still another measure is the most severe and expensive, according to one attorney with a lot of experience in bid protests. Stuart Turner of Arnold and Porter takes exception to the provision having to do with incumbents on long-term contracts who lose the follow-on.

When the incumbent losers file a protest, they often get a bridge contract. That ensures agency continuity of operations until the question of the next contractor is settled. The Senate NDAA would hold in escrow profits earned during the bridge contract and hand them to the challenging contractor, should it eventually prevail.

At a press conference, a Senate staffer said that provision was aimed at so-called serial protesters who file what the Armed Services Committee considers frivolous protests. Turner states, and I agree, this is a highly dubious supposition. Plus, it has a basic fairness problem. Even if the “frivolous” protester does lose, it nevertheless did the work during the bridge contract and should be entitled to the profits. Turner also asks, what if the company is one of several protesters? Should only one be sanctioned if they all lose?

Turner joins a chorus of experts who point out one thing agencies could do to knock down the number of protests: Give good, thorough debriefs to losing bidders. Too often, debriefs are perfunctory, short on detail. Contracting officers don’t give enough information for bidders to really know why they lost. It’s as if the government is daring companies to protest. Yes, the government usually wins, but who in their right mind would want to go through the hassle of a protest when there’s a legal, helpful way to avoid it?

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