Contractors filed fewer contract protests for the first time since 2013.
The number of bid protests filed by contractors declined in fiscal 2017 after increasing each year since fiscal 2013.
Contractors filed 2,596 bid protests in fiscal 2017, down 7 percent from a record 2,789 protest cases filed last year, according to a Government Accountability Office report. GAO adjudicates the vast majority of protests.
While the number of protests decreased, the effectiveness of protests filed increased one point, to 47 percent, according to GAO data. This indicates that contractors filing protests in fiscal 2017 obtained some form of relief from the agency—either as a result of an agency’s corrective action or GAO sustaining the protest—at a higher clip than in any of the previous five years.
The most prevalent reasons GAO sustained bid protests over fiscal 2017 were unreasonable technical evaluations, unreasonable past performance evaluation, unreasonable cost or price evaluation, inadequate documentation of the record, or simply that the agency made the wrong decision based on its selection criteria.
In its report to Congress, GAO said agencies followed the watchdog’s recommendations regarding bid protests 100 percent of the time.
The protest reduction ends a trend of several consecutive years of increased protests that left some federal officials, including those at the General Services Administration, resigned to factor protests into procurement timelines.
NDAA Adds Bid Protest Wrinkles for Defense Contractors
The $700 billion National Defense Authorization Act contains two amendments that may help further reduce the number of protests.
According to the conference report, the NDAA includes a pilot program in which the Defense Department will “determine the effectiveness of requiring contractors to reimburse [Defense] for costs incurred in processing covered protests.”
The pilot would begin two years after NDAA’s passage and would last for three years. The idea stemmed from the Senate version of the bill that would have required contractors with more than $100 million in revenue the previous year pay the government’s costs if they lost a protest. The modified NDAA ups the revenue threshold to companies with $250 million or more in revenue the previous year, and removed a provision that would have punished incumbent contractors that lose protests by also forcing them to pay government costs.
Before the pilot begins, Defense will have to answer questions surrounding what government costs contractors would actually have to pay.
In addition, the NDAA includes provisions for contractors to get additional post-award information on contract decisions. Within 180 days of the NDAA’s passage, Defense would be required to establish procedures for “enhanced post-award debriefings.”
Procedures would depend on the value of the contract in question. For example, losing contractors for contract awards greater than $100 million would be entitled to “disclosure of the agency’s written source selection award determination,” redacted to protect other companies’ confidential or proprietary information.