Could the Senate’s Plan to Speed Up Bid Protests Backfire?

The Senate’s National Defense Authorization Act contains a provision that would force the Government Accountability Office to resolve Defense Department-related bid protests within 65 days instead of the current 100-day deadline.

It’s one of two controversial provisions in the NDAA addressing the increasing number of bid protests across government that Congress will address in conference over the coming months—the other being a provision that would require large defense contractors to cover the government’s costs incurred if they file losing protests.

Regarding both provisions, the agency that would be affected most by these provisions—the GAO—appears to be their biggest critic.

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“The proposed reduction of the DOD bid protest timeframe to 65 days would significantly reduce the opportunity for participants in DOD protests (traditionally more than half of GAO’s protest caseload) to fairly and thoroughly address and present issues to assist in GAO's review,” wrote U.S. Comptroller General Gene Dodaro in a September letter addressed to the Senate Armed Services Committee.

Speeding up the protest process would give contractors and agencies less time to assess the procurement, and could lead Defense to “produce less robust responses,” including situations when the department voluntarily corrects an error in the procurement. A shorter duration also increases “the risk that all parties, including DOD, will not have a meaningful opportunity to present GAO with a full explanation of the facts and legal issues involved.”

In addition, shortening the timeframe by 35 percent also puts significant stress on GAO.

The investigative arm of Congress, GAO employs about 30 attorneys who handle bid protests filed by contractors, which hit an all-time high of almost 2,800 bid protests in fiscal 2016. GAO resolved 58 percent of those protests in fewer than 25 days—without even requiring the contracting agency to formally respond—by identifying procedurally flawed or legally insufficient protests.

Shortening the timeframe, Dodaro said, “would limit GAO’s time to determine whether protests meet such criteria, compelling GAO to require DOD to provide a formal response in a higher percentage of cases in order to assure the deadline is met. The added delay associated with these higher number of formal responses would lengthen, not shorten, the average time spent resolving DOD protests.”

Kathleen Sievers, senior manager of research at Deltek, said the increasing frequency and complexity of bid protests requires more legal work than ever.

Sievers examined bid protest data from fiscal 2014, fiscal 2015 and one quarter of fiscal 2016.

She told Nextgov the 665 Defense bid protests that GAO either sustained or denied over that period took an average of 86 days to resolve. (The 589 civilian bid protests over the same period took 87 days).

As bid protests have increased each year over the past three years, the number that merits a GAO sustainment or denial have held steady, between 20 and 23 percent, meaning they are increasing, too.

In short, while GAO is able to successfully resolve many bid protests early, complex protests still take significant time and resources to resolve, Sievers said.

“To me, unless [Congress] increases GAO’s staff to have more people in order to get this through – and you’d still have to rely on contractors to have their legal staffs be in rush mode – that’s ripe for mistakes,” Sievers said.

Less thorough GAO decisions produced in less time, she said, could compel contractors to appeal GAO decisions more frequently or take them to the U.S. Court of Federal Claims in larger numbers—both of which could further extend procurements. Judges, for instance, can halt an agency procurement indefinitely while they consider arguments.

In fiscal 2016, Ralph White, managing associate general counsel for procurement law at GAO, told Nextgov that contractors that of 2,789 bid protests filed with GAO, only 88 were “reconsiderations,” which are essentially appeals of prior GAO decisions. During the same year, the U.S. Court of Federal Claims addressed 105 protests, half of which “had some prior life at GAO.”

GAO’s decisions hold weight with contractors. Of the 2,789 bid protests filed in fiscal 2016, only 88 were “reconsiderations,” which are essentially appeals of prior GAO decisions, Ralph White, managing associate general counsel for procurement law at GAO, told Nextgov. That same year, U.S. Court of Federal Claims addressed 105 protests, half of which “had some prior life at GAO,” he said.

“It’s really telling you that people are accepting of GAO’s decisions,” White said.

Both houses of Congress have selected which lawmakers will participate in NDAA’s conference committee, where they will negotiate the differences between the versions of the bill. The finalized bill dictates Defense spending and structure, and is expected by December.