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Posted on Monday, October 16, 2017

New Senate Bill Aimed at Reducing Number of “Frivolous” Protests

The U.S. Senate recently passed its proposal for the 2018 National Defense Authorization Act (“NDAA”). The Senate’s version of this bill proposed several significant changes aimed at reducing the number of “frivolous” and speculative protests against Defense procurements filed at the U.S. Government Accountability Office (“GAO”).

To provide offerors with more information about the procurement process, and reduce the number of speculative protests, the Senate proposed a significant overhaul of the post-award debriefing process that would require Defense agencies to provide substantially more information to offerors than what is currently required under the FAR. Specifically, this information would include:

  • the agency’s written source selection award determination, redacted if necessary to protect other offerors’ confidential and proprietary information;
  • a combined written and oral debriefing for all contract awards and task or delivery orders valued at $10,000,000 or higher;
  • access to an unredacted copy of the source selection award determination and the supporting agency record for outside counsel or other appropriate outside representative for all contract awards and task or delivery orders valued at $10,000,000 or higher.

Offerors would also be provided an opportunity to submit additional follow-up questions related to the debriefing within two days of the debriefing, and the debriefing would be held open until the agency responded in writing to those questions.

The Senate also proposed reducing the time period that GAO has to decide a protest from 100 days to 65 days, except in protests that “present unusually complex issues or large agency records.”

The proposed bill also includes two changes that are aimed at reducing the number of “frivolous” protests that are filed, particularly by incumbent contractors whose motivation for protesting is to continue performing work under bridge contracts or contract extensions. First, the proposed bill would require a contractor with revenues in excess of $100 million during the previous year to pay to the DoD the costs incurred for processing a GAO protests when all elements of the protest are denied by the GAO.

Second, incumbent contractors that protest “shall have all payments above incurred costs withheld on any bridge contracts or temporary contract extensions awarded to the contractor as a result of a delay in award resulting from the filing of such protest.” Those withheld payments would only be released to the incumbent contractor if “the solicitation that is the subject of the protest is cancelled and no subsequent request for proposal is released or planned for release; or if the Government Accountability Office issues an opinion that upholds any of the protest grounds filed under the protest.”

Although the House passed similar reforms earlier this year, the texts of the Senate and House bills are not identical and will need to be resolved in conference. If these changes are implemented, they would result in significant changes to the process for protests of Defense procurements at GAO, and may result in an increase in the number of protests filed at the U.S. Court of Federal Claims.

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring upcoming contracts, key protest decisions, legal updates, events, and more. This post was published in the October 2017 Monthly Insights newsletter. For more information on how to sign up for Monthly Insights, please click here.

Stephanie Wilson is a Partner at Berenzweig Leonard, LLP. She and Terry O’Connor lead the firm’s Government Contracts practice. Stephanie can be reached at swilson@berenzweiglaw.com.