PSC opposes DOD proposal on bid protests

By Marjorie Censer / May 22, 2018 at 1:31 PM

The Professional Services Council, an industry group, is criticizing a legislative proposal by the Pentagon that would limit companies' options for protesting award decisions.

The legislative proposal, released earlier this year, would limit the time frame in which a company can challenge an award decision in the Court of Federal Claims. Already, a company faces timeliness rules in filing a protest with the Government Accountability Office. As a result, the new proposal would prevent contractors from taking a losing decision from GAO to the federal court.

PSC has sent a letter to Capitol Hill opposing the provision, arguing the move is premature given that the recent RAND Corp. report on bid protests recommended looking more deeply into cases before the court that were previously considered by GAO.

In its May 15 letter, sent to the leaders of the Senate Armed Services Committee and the Senate Committee on the Judiciary, PSC writes: "Congress would benefit from a review of the outcomes of COFC cases to determine if the sustained rate reflects the concerns expressed by the Department of Defense.

"Our own research finds that there are few covered cases that arise in any one year, which does not justify such a significant legislative change," the letter added.

Alan Chvotkin of PSC told Inside Defense this proposal has been made twice before but not been adopted.

"We've been to this movie before," he said.

In its proposal, DOD argues the change would more quickly resolve protests.

"The expeditious resolution of protests is greatly hindered by the ability of a protestor to seek redress at GAO and, faced with a negative outcome, then seek another review of the agency's actions by filing a protest with the COFC," the document reads.

In recent years, Congress has shown a willingness to alter the bid-protest process. Last year's defense authorization legislation included a new provision that starts in two years requiring a contractor with at least $250 million in revenue to reimburse DOD for the cost of an unsuccessful protest.