WASHINGTON — The House Armed Services Committee in its mark of the 2017 defense policy bill is calling for an independent review of the bid protest process of major acquisition programs.
Should the proposed legislation become law, the defense secretary will have 30 days to select an independent entity to review the bid protest process.
The review should determine whether bid protests have been on the rise or fallen in the previous 10 years. The examination should also look at whether protests have delayed procurement of items or services and if differences exist in the "incidence and outcomes" of protests filed by incumbent contractors versus new contractors, according to the bill language.
Lawmakers also want to know whether protests filed by incumbent contractors resulted in contract extensions and if the contractor benefited in some way.
Lastly, the review should determine if there are "alternative actions or authorities" that could give the Defense Department more flexibility managing contracts once a bid protest is filed.
The 2016 National Defense Authorization Act called for a similar review of the bid protest process.
When a bid protest is typically filed with the Government Accountability Office, the winning contractor must stop work on the program, which ultimately results in schedule delays of around 90 days -- the amount of time the office has to determine whether to deny or sustain the protest.
A briefing on the findings would be due to the four congressional defense committees no later than March 1, 2017, and a report on the review "with a description of any actions that the secretary proposes to address the findings," would be due no later than July 1, 2017.
The call for a new review comes at a time when bid protests are considered to be on the rise. According to a July 2015 Congressional Research Service report on GAO bid protests, "there has been a significant shift in bid protest trends over the last six years."
While total government spending has decreased by 25 percent, bid protests have risen by 45 percent from fiscal 2008 to 2014 when compared to the 2001 to 2008 time frame, the CRS report reveals. At the same time, the rate that GAO sustains protests is falling. From 2009 to 2014, that rate dropped to 17 percent.
"These numbers suggest that while companies are more likely to file a bid protest, they are somewhat less likely to win a bid protest," the CRS report states.
Several high-profile protests of big-ticket weapons system contract awards have occurred in the past year.
Lockheed Martin protested the Army's decision to award Oshkosh Defense a contract to built Humvee replacement -- the Joint Light Tactical Vehicle -- in September 2015.
GAO denied the protest in December because Lockheed decided to take its complaint all the way to the US Court of Federal Claims. The company ultimately withdrew its lawsuit.
The GAO also recently denied General Dynamics Land Systems' protest of the Marine Corps' decision to award contracts to both BAE Systems and SAIC to build prototype Amphibious Combat Vehicles.
And the GAO recently denied Boeing's protest late last year of the US Air Force's decision to award Northrop Grumman a contract to build the Long Range Strike Bomber.
Jen Judson is the land warfare reporter for Defense News. She has covered defense in the Washington area for 10 years. She was previously a reporter at Politico and Inside Defense. She won the National Press Club's best analytical reporting award in 2014 and was named the Defense Media Awards' best young defense journalist in 2018.