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Tuesday, May 5, 2015

Many a crocodile tear has to fall, but it's all in the game

Defense bill asks if contractors are gaming bid protests
Lawmakers want to know if Defense Department contractors are gaming the bid protest process, according to language included in the National Defense Authorization Act.

The NDAA, which passed out of House Armed Services Committee on a 60 to 2 vote April 30, instructs DoD to commission a study regarding how Defense Department contractors use - and possibly manipulate - the bid protest process.

The NDAA asks DoD to analyze:

• If contractors who currently have a DoD contract enter a bid protest to delay the implementation of new contracts that would draw business away from the old one. The Government Accountability Office has up to 100 days to review a bid protest and render a decision.

• The extent to which companies file bid protests even when they do not believe the Defense Department made an error in order to delay or otherwise disrupt the process.

• Whether there are net benefits for companies filing a protest or indicating they plan on filing a protest.

Bid protests across government increased in fiscal 2014 to 2,561 – up from 2,429 in fiscal 203. The Government Accountability Office only upheld about 13 percent of bid protests filed by companies that year.

But the effectiveness rate – when an agency and contractor come to a settlement either before GAO makes a decision or after it sustains a protest – held steady at 43 percent of all cases.
I'm certainly looking forward to the results of such a study, assuming it will be a study.  It will go some way towards answering the validity of cries over the "frivolity" of protests.   I disagree with many protests, and other actions taken in the course of solicitations, but agree that any colorable claim of material irregularity is ripe for adjudication; otherwise, lumps in the rug will grow from all that gets swept under.

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