PSC Urges Senate to Reject Bid Protest Limits in FY19 NDAA PSC Believes Defense Department’s Request is Premature

May 17, 2018

Arlington, V.A. (May 17, 2018)— The Professional Services Council (PSC) urged the leaders of the Senate Armed Services Committee and the Committee on the Judiciary to reject a Department of Defense (DoD) legislative proposal that would limit access for companies seeking relief from potentially unjustified awards.

DoD has proposed modifications to the Tucker Act to prohibit so-called “second bite at the apple” protests—the ability of a disappointed offeror to bring a timely protest first at the Government Accountability Office (GAO) and then, after an adverse decision there, to file suit in the U.S. Court of Federal Claims (COFC).

“Through the FY17 NDAA, Congress directed a comprehensive study on the prevalence and impact of bid protests on Department of Defense acquisitions,” said Alan Chvotkin, PSC's executive vice president and counsel. "The report recommended that Congress consider collecting additional data on a number of issues, and specifically listed ‘tracking cases that appear at COFC with a prior history at GAO.’ We believe it is premature, at best, for Congress to include this provision in the FY19 NDAA after the report identified it as in need of further research.”

“In addition to the numbers, Congress would benefit from a review of the outcomes of COFC cases to determine if the sustained rate reflects the concerns expressed by the Department of Defense. PSC’s research finds that there are few covered cases that arise in any one year, which does not justify such a significant legislative change,” Chvotkin continued. 

PSC is further concerned that this provision will undercut the fundamental purpose of the bid protest process—to hold agencies accountable for following the law and their procurement procedures in a transparent manner. 

PSC, the voice of the government technology and professional services industry, sent the letter to Senate committee leaders on May 15, ahead of next week’s NDAA mark up.  

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Media Contact: 
Ashlei Stevens
Director, Media Relations
703.875.8974
stevens@pscouncil.org