President Obama has signed HR 5995, a law giving the Government Accountability Office permanent authority to oversee protests of civilian task orders over $10 million. The GAO task order protest authority has been expired since the end of FY2016 on September 30.
This is good news for businesses that contract with civilian agencies. Before GAO authority was reinstated, there was almost no avenue for companies to protest task order decisions. Contractors’ only option was to go to an agency’s task order ombudsman, a murky process with little transparency.
GAO task order protests have sometimes been controversial, because they slow down procurement. However, some welcome the extra oversight that GAO provides, especially as some multiple-award contracts include multi-million or billion dollar task-orders. Washington Technology reports that many protests are filed because companies are not given enough information about why they lost a bid in debriefings.
The newly signed legislation does not retroactively allow companies to protest task orders that were signed after the sunset on September 30. EZGovOpps data logged 12,830 task orders over $10 million that were signed during this time-period. That’s thousands of task orders unopposed.
The authorized task order protests also have very limited scope. Under the Federal Acquisition Regulation (FAR), no protests can be filed at all for task orders under $10 million in value, unless it is on the grounds that the order “increases the scope, period, or maximum value of the contract.” For task orders without protest authority, the agency ombudsman, a high-level agency official meant to facilitate competition, is the only option.
GAO’s bid protest process timeline. The GAO task order protest authority was just reinstated, allowing contractors under multiple-award contracts to protest task orders. Courtesy of GAO
Filing a GAO task order protest? Here’s what you need to know.
– This is a good time to protest. In 2016, GAO sustained more bid protests than in any year in the past decade. GAO sided with companies in 23 percent of cases last year, far more than the 12 percent sustained in 2015.
– Protest for the right reasons. In a report to Congress, GAO listed the most prevalent grounds for sustaining protests. They are:
- Unreasonable technical evaluation
- Unreasonable past performance evaluation
- Unreasonable cost or price evaluation
- Flawed selection decision
If your company lost a task order bid for any of these reasons, don’t hesitate to speak up.
– Protesting is worth it – even though the rate at which GAO sustains protests looks low. Many protests are withdrawn before they go through the appeal process, because agencies willingly correct their mistakes. Filing a protest can be a good way to get agencies to take a second look at their decision.
– Market intelligence is a protestor’s best friend. Research the contract using a market intelligence service like EZGovOpps, making sure you know the ins and outs of its specifications. Learn as much as you can about the competitor that won the contract, especially if your protest is based on an unreasonable past performance evaluation. You can use EZGovOpps to see the company’s history, including contracts and task orders. Try it free for five days, or chat below with one of our analysts to learn more.
Don’t forget to view our full GovCon News section for more intel.
Published on Dec 21, 2016