Senate Proposes Major Overhaul to the GAO Bid Protest Process

October 3, 2017

Government Contracts Navigator

On September 18, 2017, the Senate passed its version of the 2018 National Defense Authorization Act (“NDAA”). The proposed bill, which heads into conference with the House to resolve the competing bills, will implement significant changes to the federal bid protest practice at the U.S. Government Accountability Office (“GAO”), should the bill emerge more or less intact from conference and if it is signed into law by the President.

While the Senate’s 2018 NDAA increases military spending across many defense programs, it will also substantially impact several other areas within government procurement. Besides increasing defense spending to meet emerging threats and addressing the increased use of commercial item procurements, one of the most notable areas proposed for reform is an overhaul of the post-award debriefing process currently given by agencies to disappointed offerors. In this respect, and as proposed, Sections 821 and 822 of the NDAA would make substantially more information available to disappointed offerors than that which currently is available to contractors under the Federal Acquisition Regulation, which is relatively anemic by comparison. The purpose of the Senate proposal is to provide contractors with more data so they can make better and more informed decisions about whether to file a protest, thus reducing the number of speculative protests that are filed to test or probe suspicions that the evaluation process may not have been conducted properly or that the agency may have committed other prejudicial errors, while also encouraging contractors to adopt a more measured approach in their procurement strategies, including protests.

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