How To Use the NDAA Pages

Back to William M. (Mac) Thornberry NDAA Contents

TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle F—Other Matters

P. L. 116-

House Conference Report   116-617

The Senate amendment contained a provision (sec. 846) that would repeal section 827 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115-91), which required the Secretary of Defense to carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense (DOD) for costs incurred in processing covered protests.

The House bill contained no similar provision.

The House recedes.

The conferees note that the pilot program is unlikely to result in improvements to the bid protest process given the small number of bid protests captured by the pilot criteria and lack of cost data.

The conferees continue to support efforts to improve the handling of bid protests. In support of such efforts, the conferees direct the Secretary of Defense to undertake a study through the Center for Acquisition Innovation Research, to examine elements of Section 885 of the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 114-328) for which the RAND National Defense Research Institute was unable to obtain full and complete data during its analysis. This study shall address: (1) The rate at which protestors are awarded the contract that was the subject of the bid protest;
(2) A description of the time it takes the Department to implement corrective actions after a ruling or decision, the percentage of those corrective actions that are subsequently protested, and the outcomes of those protests; (3) 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; and (4) Analysis of the number and disposition of protests filed within the Department.

The conferees emphasize the potential benefits of a robust agency-level bid protest process. Accordingly, the study should evaluate the following factors for agency-level bid protests: prevalence, timeliness, outcomes, availability, and reliability of data on protest activities; consistency of protest processes among the military Services; and any other challenges that affect the expediency of such protest processes. In doing so, the study should review existing law, the Federal Acquisition Regulation, and agency policies and procedures and solicit input from across the DOD and industry stakeholders. The conferees note that an academic study recently examined the agency-level bid protest process at various federal agencies, including the Department of Defense, and reported on that study to the Administrative Conference of the United States. The conferees direct the Department to consider these recommendations among those it might make to improve the expediency, timeliness, transparency, and consistency of agency-level bid protests.

Not later than September 1, 2021, the Secretary of Defense shall provide the congressional defense committees with a report detailing the results and recommendations of the study, together with such comments as the Secretary determines appropriate.

Senate Committee Report 116-236 to Accompanying S. 4049

Repeal of pilot program on payment of costs for denied Government Accountability Office bid protests (sec. 846)

The committee recommends a provision that would repeal section 827 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115-91), which required the Secretary of Defense to carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense (DOD) for costs incurred in processing covered protests. The committee finds that the pilot program is unlikely to result in improvements to the bid protest process given the small number of bid protests captured by the pilot criteria and lack of cost data.

The committee continues to support efforts to improve the handling of bid protests. In support of such efforts, the committee directs the Secretary of Defense to undertake a study of the processes for agency-level bid protests. The study should evaluate the following for agency-level bid protests: prevalence, timeliness, outcomes, availability, and reliability of data on protest activities; consistency of protest processes among the military services; and any other challenges that affect the expediency of such protest processes. In doing so, the study should review existing law, the Federal Acquisition Regulation, and agency policies and procedures and solicit input from across the DOD and industry stakeholders. The study should also include recommendations to improve the expediency, timeliness, transparency, and consistency of agency-level bid protests.

Not later than September 1, 2021, the Secretary of Defense shall provide the congressional defense committees with a report detailing the results and recommendations of the study, together with such comments as the Secretary determines appropriate.