Category: Bid Remedies/Protests

Tuesday, March 19, 2024 | 12:00 pm – 1:30 pm ET

Venue: Miles & Stockbridge, P.C., 1201 Pennsylvania Avenue, N.W., 9th Floor, Washington, DC 20004

This is a hybrid in-person/remote event.  Register here for In-Person or Zoom Attendance

Please join the American Bar Association (ABA) Section of Public Contract Law’s Bid Protest Committee for our March 2024 meeting on “Agency-Level Protests.”  Topics include:

• Executive Order 12979 and the history of agency-level protests;
• Factors to consider when deciding whether to bring an agency-level protest;
• Jurisdictional and standing issues affecting agency-level protests;
• Where and when to file an agency-level protest;
• What happens to the contract award while an agency-level protest is pending;
• What, if anything, the protester is provided in terms of an administrative record; and
• How agency-level protests are decided and reported.

We hope that you can join us for this highly informative presentation.  Lunch will be provided for those who RSVP for in-person attendance.  Government personnel will have the option to pay $10 for lunch.

Panelists:

• Christopher Yukins, Lynn David Research Professor in Government Procurement Law, GW Law (author, ACUS report on proposed agency-level protest reforms, and AIRC congressionally mandated report on DoD bid protests)
• Scott Flesch, Member, Miller & Chevalier Chartered
• Lt. Col. Bruce Mayeaux, U.S. Army, Deputy Chief Contract & Fiscal Actions Division
• Rachel Park, Integrity Officer, Office of the U.S. General Services Administration Suspension & Debarment Official and Agency Protest Official

The Senate Armed Services Committee report to accompany the pending National Defense Authorization Act (NDAA) for Fiscal Year 2021, Senate Report No. 116-236, calls for a Defense Department report on agency-level bid protests. This follows on the Administrative Conference of the United States project (supporting materials on this website) to study agency-level bid protests. Both the House (H.R. 6395) and Senate (S. 4049) versions of the pending NDAA have passed, and the legislation will now likely proceed to conference to reconcile the two bills.

The Senate report states:

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

    The committee recommends a provision that would repealsection 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 tha 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.