It seems like a yearly ritual. The U.S. Senate Armed Services Committee (“SASC”) drafts and passes a version of the annual National Defense Authorization Act (“NDAA”) that includes reforms aimed at curtailing bid protests, while the House Armed Services Committee (“HASC”) drafts and passes a version of the NDAA that omits these bid protest reforms. Every year, the majority of the reforms in Senate are eliminated during the conference committee process. However, the FY2019 NDAA appears to be headed towards a break in this yearly ritual.
On June 5, 2018, the SASC introduced its version of the FY2019 NDAA to the Senate. For the first time in several years, the SASC’s proposed version of the FY2019 NDAA does not contain any major reforms to limit bid protests. The SASC’s proposed FY2019 NDAA (Section 811) contains only a few provisions aimed at bid protests, neither of which would limit bid protests. Both provisions appear to be related to findings in RAND’s 2018 report of DoD bid protests:
- The SASC proposed a provision that would require the Secretary of Defense to carry out a study of the frequency and effects of bid protests involving the same Department of Defense (“DoD”) contract award or proposed award that have been filed at both the Government Accountability Office (“GAO”) and the Court of Federal Claims (“GAO”), and establish a data collection system to better track and analyze bid protest trends in the future.
- The SASC proposed that the Secretary of Defense develop a plan and schedule for an expedited bid protest process for DoD contracts with a value of less than $100,000. According to the SASC, this type of process “would be akin to a traffic court, would help resolve smaller and generally simpler cases commensurate with their value while preserving the right to an independent protest.“