Report to Congress on Bid Protests Involving Defense Procurements
B-401197: Apr 9, 2009
This report responds to the direction from the Committee on Armed Services, House of Representatives, contained in the report on the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. The committee directed the Comptroller General of the United States to review bid protests filed with the Government Accountability Office (GAO) during the last 5 years associated with procurement actions by the Department of Defense (DOD). The committee requested that we assess the extent to which bid protests may be increasing, the extent to which frivolous and improper protests may be increasing, and the causes of any identified increases. The committee further directed the Comptroller General to provide recommendations regarding actions that Congress, or the executive branch, could take to disincentivize frivolous and improper bid protests on the part of industry.
This report reaches the following conclusions about the GAO Bid Protest process in general, and about the committee's mandate to assess the increase in protests and the extent to which frivolous protests may be increasing: (1) Twenty-five years ago, the Competition in Contracting Act of 1984 (CICA) codified and significantly enhanced GAO's bid protest forum. The existing process provides a balanced approach to adjudicate and resolve challenges to U.S. Government procurements. (2) Despite an increase in bid protest filings in fiscal year (FY) 2008--driven in part by statutory expansions of GAO's bid protest jurisdiction--the number of protests challenging DOD contract awards in the last 5 years is relatively low when viewed historically. (3) The GAO bid protest process significantly reduces potential disruptions to DOD procurements as a result of three factors: GAO consistently closes more than 50 percent of all protests involving DOD procurements within 30 days of filing; the remaining DOD protests must be, and are, resolved within 100 days of filing; and CICA permits agencies to proceed with contract performance even before a protest is resolved when the goods or services are urgently needed, or when proceeding is in the best interests of the United States. (4) GAO's regulations and procedures currently provide GAO the ability to promptly close protests that do not merit further development. GAO does not need to determine that a protest is "frivolous" to promptly close it, and, in our view, making such a determination could add substantial costs to the protest process and have the unintended consequence of discouraging participation in federal contracting and, in turn, limiting competition.