The Section 809 Panel, which is tasked with developing and providing recommendations to improve and enhance the efficiency of the Department of Defense procurement system, issued the third volume of its report and recommendations Jan. 15, 2019. Among the numerous recommendations for streamlining DoD acquisitions, several of which relate to bid protest practice, three in particular propose potentially significant changes to the DoD bid protest process, with the aim and constant challenge, of balancing the dual interests of ensuring accountability in the procurement process while managing or reducing the delay and disruption that protests invariably have on procurements. The notable recommendations are Recommendations 35, 67 and 69.
Perhaps the most potentially impactful recommendation is Recommendation 35. Among other things, this recommendation proposes changes that would deprive the Government Accountability Office and the U.S. Court of Federal Claims of both pre and post-award bid protest jurisdiction for acquisitions of “readily available” products or services in DoD acquisitions that are valued at $15 million or less. The term “readily available” differs from commercial items or commercial-off-the-shelf offerings. As proposed, “readily available” would mean “with respect to a product or service, . . . a product or service that requires no customization by the vendor and can be put on order by customers. Such term includes optional, priced features of products and services in a form that is offered for sale in the normal course of business.” Offerors would still have an option of protesting at the agency but the traditional forums for protests would be rescinded if this proposal goes through. Along with the already existing jurisdictional limits for certain task order protests, Recommendation 35, if implemented, would further curtail DoD protest options.