The National Defense Authorization Act (“NDAA”) is an annual bill that sets forth the policy and budget priorities for the Department of Defense for an upcoming fiscal year. Striving to achieve bipartisan support, Congress’s task to reach an agreement on the NDAA is a daunting one. Only after months of intense negotiations, meetings, and hearings are the thousands of pages of the NDAA ready for a vote in the House and Senate. Last year, President Barack Obama vetoed the NDAA for Fiscal Year 2016.
On April 12, 2016, the House Armed Services Committee (“HASC”) Chairman, Representative Mac Thornberry (R-TX) kicked off this year’s process of developing the Fiscal Year 2017 NDAA (the “FY 17 NDAA”) when he introduced House Resolution 4904. Earlier this week, Rep. Thornberry, released his consolidated draft of the $610 billion FY 17 NDAA, dubbed the “Chairman’s Mark.”
Among the many initiatives and policies set forth in the 758-page bill, at least one provision of the FY 17 NDAA is likely to stand out to many federal government contractors. Specifically, Section 831 provides that the Department of Defense must commission an “independent entity” to conduct a review of the bid protest process and submit a final report to the HASC detailing its findings before July 1, 2017.
Importantly, Section 831 recognizes that the bid protest process promotes transparency and fairness in competitive federal procurements, stating:
[T]he bid protest process serves a valuable role in helping ensure the overall integrity of the Federal procurement system. In recent years, however, there have been conflicting reports about the role of bid protests in the Department of Defense and whether the number of protests have increased and contributed to avoidable costs and schedule effects on acquisition programs.
In order to examine potential reforms to the bid protest process, Section 831 requires the Department of Defense to consider the extent to which:
- The incidence and duration of bid protests have increased or decreased during the previous decade;
- Bid protest have delayed the procurement of items or services;
- There are differences in the incidence and outcomes of bid protest filed by incumbent and non-incumbent contractors;
- Protest filed by incumbent contractors result in extension of the period-of-performance of a contract, and whether there are benefits to incumbent contractors under such circumstances; and
- There are alternative actions or authorities that could give the Government more flexibility in managing contracts if a bid protest is filed.
While the FY 17 NDAA is still in its infancy, and much is likely to change before a final bill is approved by Congress, Section 831 appears to introduce a Department of Defense initiative to lead the charge in reforming the bid protest process. While it is unclear the genesis of this initiative, it may be a result of the Department of Defense having faced several recent bid protests challenging award decisions in major defense acquisition programs.
Whatever the case may be, and to the extent Section 831 is passed as part of the final FY 17 NDAA, any significant reform to the bid protest process resulting from this provision is likely years away. We will certainly monitor developments as Congress debates the FY 17 NDAA, and will provide updates on the Procurement Playbook as they become available.
Image courtesy of Flickr (licensed) by Kevin Burkett