By Heather Mims

Currently, an unsuccessful offeror may file a Protest with the Government Accountability Office (“GAO”) and, if the protest is denied, file suit at the United States Court of Federal Claims (“COFC”). However, the Department of Defense (“DOD”) sought to change that.

On April 3, 2018, the DOD submitted its Fourth Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act for Fiscal Year 2019. Of particular interest to contractors, DOD sought to amend the Tucker Act to impose timeliness rules at the COFC (“COFC”) where no specifical timeliness rules have existed. Specifically, DOD sought to impose timeliness rules that mirror those of the GAO, which would mean that a contractor would have to file a protest at the COFC within ten days of when it knew or should have known of its protest ground.

Therefore, a contractor would be forced to choose its venue and file its bid protest within these initial ten days. In fact, DOD’s proposal specifically modifies the Tucker Act to state that under no circumstances will the COFC consider a protest that is untimely because it was first filed at the GAO. However, the DOD’s proposal does not limit agency-level protests. As such, a contractor could still submit a protest to the agency and, if denied, either file a protest at the GAO or submit a claim at the COFC within ten days of the agency’s denial.

While the Senate’s proposed National Defense Authorization Act for Fiscal Year 2019 did not include this suggested change, it does require the Secretary of Defense to carry out a study of the frequency and effects of bid protests involving the same DOD contract award or proposed award that have been filed at both the GAO and the COFC. It also requires the Secretary to establish a data collection system to better track and analyze bid protest trends in the future.

This decision comes after Fiscal Year 2017’s NDAA required “a comprehensive study on the prevalence and impact of bid protests on Department of Defense acquisitions, including protests filed with contracting agencies, the Government Accountability Office, and the Court of Federal Claims.” The RAND Corporation was commissioned to provide this study; its report, provided to Congress in December 2017, found that the number of COFC cases that previously appeared at the GAO may be increasing but “this potential trend needs further research.”

Thus, it appears that Congress is seriously considering DOD’s proposal as it has requested further research on this topic. Don’t be surprised if you see DOD propose this legislative change again next year!

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