SEC. 885. REPORT ON BID PROTESTS.
(a) Report Required.—Not later than 270 days after the date of
the enactment of this Act, the Secretary of Defense shall enter
into a contract with an independent research entity that is a
not-for-profit entity or a federally funded research and
development center with appropriate expertise and analytical
capability to carry out a comprehensive study on the prevalence
and impact of bid protests on Department of Defense
acquisitions, including protests filed with contracting
agencies, the Government Accountability Office, and the Court of
Federal Claims.
(b) Elements.—The report required by subsection (a) shall cover
Department of Defense contracts and include, at a minimum, the
following elements:
(1) For employees of the Department,
including the contracting officers, program executive
officers, and program managers, the extent and manner in which
the bid protest system affects or is perceived to affect—
(A) the development of a procurement
to avoid protests rather than improve acquisition;
(B) the quality or quantity of pre-proposal discussions,
discussions of proposals, or post-award debriefings;
(C) the decision to use lowest price technically acceptable
procurement methods;
(D) the decision to make multiple awards or encourage
teaming;
(E) the ability to meet an operational or mission need or
address important requirements;
(F) the decision to use sole source award methods; and
(G) the decision to exercise options on existing contracts.
(2) With respect to a company bidding
on contracts or task or delivery orders, the extent and manner
in which the bid protest system affects or is perceived to
affect—
(A) the decision to offer a bid or
proposal on single award or multiple award contracts when
the company is the incumbent contractor;
(B) the decision to offer a bid or proposal on single award
or multiple award contracts when the company is not the
incumbent contractor;
(C) the ability to engage in pre-proposal discussions,
discussions of proposals, or post -award debriefings;
(D) the decision to participate in a team or joint venture;
and
(E) the decision to file a protest with the agency
concerned, the Government Accountability Office, or the
Court of Federal Claims.
(3) A description of trends in the
number of bid protests filed with agencies, the Government
Accountability Office, and Federal courts, the effectiveness
of each forum for contracts and task or delivery orders, and
the rate of such bid protests compared to contract obligations
and the number of contracts.
(4) An analysis of bid protests filed by incumbent
contractors, including—
(A) the rate at which such
protesters are awarded bridge contracts or contract
extensions over the period that the protest remains
unresolved; and
(B) an assessment of the cost and schedule impact of
successful and unsuccessful bid protests filed by incumbent
contractors on contracts for services with a value in excess
of $100,000,000.
(5) A comparison of the number of
protests, the values of contested orders or contracts, and the
outcome of protests for—
(A) awards of contracts compared to
awards of task or delivery orders;
(B) contracts or orders primarily for products, compared to
contracts or orders primarily for services;
(C) protests filed pre-award to challenge the solicitation
compared to those filed post-award;
(D) contracts or awards with single protestors compared to
multiple protestors; and
(E) contracts with single awards compared to multiple award
contracts.
(6) An analysis of the number and
disposition of protests filed with the contracting agency.
(7) A description of trends in the number of bid protests
filed as a percentage of contracts and as a percentage of task
or delivery orders awarded during the same period of time,
overall and set forth separately by the value of the contract
or order, as follows:
(A) Contracts valued in excess of
$3,000,000,000.
(B) Contracts valued between $500,000,000 and
$3,000,000,000.
(C) Contracts valued between $50,000,000 and $500,000,000.
(D) Contracts valued between $10,000,000 and $50,000,000.
(E) Contracts valued under $10,000,000.
(8) An assessment of the cost and
schedule impact of successful and unsuccessful bid protests
filed on contracts valued in excess of $3,000,000,000.
(9) An analysis of how often protestors are awarded the
contract that was the subject of the bid protest.
(10) A summary of the results of protests in which the
contracting agencies took unilateral corrective action,
including—
(A) at what point in the bid protest
process the agency agreed to take corrective action;
(B) the average time for remedial action to be completed;
and
(C) a determination regarding—
(i) whether or to what extent the
decision to take the corrective action was a result of a
determination by the agency that there had been a probable
violation of law or regulation; or
(ii) whether or to what extent such corrective action was
a result of some other factor.
(11) A description of the time it
takes agencies to implement corrective actions after a ruling
or decision, and the percentage of those corrective actions
that are subsequently protested, including the outcome of any
subsequent protest.
(12) An analysis of those contracts with respect to which a
company files a protest (referred to as the “initial protest”)
and later files another protest (referred to as the
“subsequent protest”), analyzed by the forum of the initial
protest and the subsequent protest, including any difference
in the outcome, between the forums.
(13) An analysis of the effect of the quantity and quality of
debriefings on the frequency of bid protests.
(14) An analysis of the time spent at each phase of the
procurement process attempting to prevent a protest,
addressing a protest, or taking corrective action in response
to a protest, including the efficacy of any actions attempted
to prevent the occurrence of a protest.
(c) Briefing.—Not later than March 1,
2017, the Secretary, or his designee, shall brief the Committees
on Armed Services of the Senate and House of Representatives on
interim findings of the independent entity.
(d) Report.—Not later than one year after the date of the
enactment of this Act, the independent entity that conducts the
study under subsection (a) shall provide to the Secretary of
Defense and the congressional defense committees a report on the
results of the study, along with any related recommendations. |
Report on bid protests (sec. 885)
The Senate bill contained a provision
(sec. 821) that would amend chapter 137 of title 10, United
States Code, to add a new section to outline the role of the
Government Accountability Office (GAO) in bid protests on
certain contracts with the Department of Defense. The provision
would require a large contractor filing a bid protest on a
defense contract with GAO to cover the cost of processing the
protest if all of the elements in the protest are denied in an
opinion issued by GAO. The provision would also impose a
withhold on payments above incurred costs on any bridge or
temporary contract to an incumbent contractor who submits a
protest and that protest results in the issuance of a bridge or
temporary contract. The distribution of this withhold would be
dependent on the outcome of the protest.
The House amendment contained a similar
provision (sec. 831) that would require the Secretary of Defense
to enter into a contract with an independent entity with
appropriate expertise to conduct a review of the bid protest
process related to major defense acquisition programs.
The Senate recedes with an amendment
that expands the scope of the report to look at ways that the
possibility of bid protests may influence behavior by
contracting officers and by contractors. The report shall be due
1 year after the date of enactment of this Act. |
