The 809 Panel's Bid Protest Reform Recommendations

Author:Mr Stuart Turner and Nathaniel Castellano
Profession:Arnold & Porter

In 2016, Congress instructed the U.S. Department of Defense to convene a panel of procurement professionals from inside and outside government to review every regulation governing DOD procurement and recommend whether each one should be preserved, amended, or repealed. In an effort to "streamlin[e] and improve[e] the efficiency and effectiveness of the defense acquisition process,"1 the 809 Panel has released a series of reports detailing its findings and specific recommendations for Congress, the third and final of which was published on Jan. 15, 2019.2

This final volume covers, among other topics, one of the most hotly debated areas of government procurement: Bid protest reform. The report makes four recommendations for reforming the bid protest system:

Enact a bid protest purpose statement; Eliminate "Second Bite" protests at the U.S. Court of Federal Claims and impose U.S. Government Accountability Office timelines on the COFC; Eliminate the GAO and the COFC protest for procurements valued below $75,000; and Provide enhanced post-award debriefings.3 Each recommendation would require new legislation to implement.

While Congress and the DOD certainly do not have to accept the 809 Panel's recommendations, these proposals will likely influence future fiscal years' National Defense Authorization Act deliberations in Congress, as well as procurement reform generally. The recommendations, while not as radical as some of those the panel contemplated earlier in its deliberations, would change several salient features of the bid protest landscape and would affect the options - and information - available to unsuccessful bidders contemplating a protest.

Enact a Purpose Statement for Bid Protests

The 809 Panel's first recommendation is its least impactful. The panel identifies several purportedly contradictory interests at work in the protest system, i.e. should bid protest reformers seek to "ensure accountability" from the government or simply make protests move more quickly?4 And, are protests themselves for the purpose of informing government of its mistakes, or providing recourse to bidders impacted by such mistakes?5 The 809 Panel claims that these contradictions make it difficult to determine effective reform measures and believes that the problem arises from a lack of policy guidance in the statutes governing the protest process.6

After a survey of various statements from international and model code sources, the report recommends that Congress adopt the following purpose statement in Title 10 of the United States Code:

The purpose of Congress in providing for review of procurement action of the Department of Defense ... was to enhance confidence in the Department of Defense contracting process by providing a means ... for identification of violations of procurement statutes and regulations in a timely, transparent, and effective manner; and a means for timely, transparent, and effective resolution of any such violation.7

Thus, the 809 Panel, concerned with the competing interests at play in bid protests, crafted a position statement that endorses all of them: Protests should enhance bidder confidence, identify and inform the DOD of violations and resolve such violations quickly and effectively.

The recommendation does not resolve the contradictions the panel invokes, but does define what is at stake in any reform of a bid protest system. Certainly any reform effort should be concerned with timeliness, transparency and effectiveness, and any protest system that is effective at identifying and remedying government violations of procurement statutes will foster confidence in the marketplace. It is not entirely clear, however, why Congress needs to enact this provision, which seems to amount only to a post hoc assertion of legislative intent. Whether Congress adopts the purpose statement, or simply uses the panel's recommendation as a guide post for future reform efforts, it will be interesting to see how previously enacted pilot programs - like loser-pays provisions,8 under which certain unsuccessful protesters would be liable for the government's costs incurred defending against the protest - measure up in light of this newly stated goal.

Eliminate "Second Bite" Protests at the COFC and Impose the GAO Timelines On COFC Protests

At present, the GAO and the COFC maintain separate, independent bid protest jurisdictions. If a protester is...

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