The Defense Department wants to prevent companies that lose bid protests with the Government Accountability Office (GAO) from seeking remedy by suing in federal court.
As part of its legislative proposals for the fiscal year 2017 defense authorization bill, the Pentagon wants to impose timeliness rules at the Court of Federal Claims (CoFC) that would mirror those for bid protests filed with GAO. DoD essentially wants losing contractors to pick one avenue or the other, GAO or CoFC, and have 10 days to make its decision. 
Currently, the jurisdiction of the CoFC and GAO are concurrent. As a result, the protestor may file a protest with the GAO and, if the protest is denied, file suit at the CoFC.
DoD believes the proposal would improve the protest system by reducing the amount of time consumed by protests. DoD believes it would save agencies money by ensuring that two separate trial-level forums do not adjudicate the same bid protest while also assuring protestors of accountability and transparency no matter which forum they choose.
DoD believes this reform would largely eliminate “forum shopping.” DoD believes the “expeditious” resolution of protests is greatly hindered by the ability of a protestor to seek redress at GAO and, faced with a negative outcome, then seek another review of the agency’s actions by filing a protest with the CoFC.
DoD seeks a number of time limits. It wants a protest based upon alleged improprieties in a solicitation that are apparent before bid opening or the time set for receipt of initial proposals to be filed before bid opening or the time set for receipt of initial proposals. In the case of a procurement where proposals are requested, alleged improprieties that do not exist in the initial solicitation, but that are subsequently incorporated into the solicitation, shall be protested no later than the next closing time for receipt of proposals following the incorporation.
Any other protest shall be filed no later than 10 days after the basis of the protest is known, or should have been known, whichever is earlier. The exception would be a protest challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. For any protest based on an issue known or that should have been known before, or as a result of, the debriefing, the initial protest shall not be filed before the debriefing date offered to the protestor, but shall be filed no later than 10 days after the debriefing date.
If a timely agency-level protest was previously filed, any subsequent protest to the CoFC that is filed within 10 days of actual, or constructive knowledge of initial adverse agency action, shall be considered, unless the contracting agency imposes a more stringent time for filing the protest. In this case, the agency’s more stringent time for filing shall prevail. DoD also proposes making the CoFC the only court that has jurisdiction to provide judicial review of bid protests. Federal district courts are currently an option for remedy.
The provision also bars CoFC from considering a protest that is untimely because it was first filed at GAO, thus underlining the choice of forum requirement which is the object of the proposal. The provision would also go into effect 180 days after enactment due to the impact on the existing rights of interested parties resulting from shortening the statute of limitations from six years to 10 days.
If a protestor files its protest at the 10-day limit, and GAO uses the entire 100 day statutory period to issue its protest decision, the GAO process will have taken nearly four months, DoD said. DoD believes the 180 days provides interested parties with a reasonable time to file with CoFC prior to the statutory change taking effect.
The Professional Services Council (PSC) opposes DoD’s provision. In a letter to House Armed Services Committee (HASC) Chairman Mac Thornberry (R-Texas) and Ranking Member Adam Smith (D-Wash.), PSC Executive Vice President and Counsel Alan Chvotkin said the committee properly rejected a similar 2013 proposal and no circumstances have changed since then. Second, Chvotkin said, this proposal addresses only one of the several significant differences between the GAO and CoFC in both pre-award and post-award bid protests that should be fully explored before a significant change to only one element of the protest rules is made.
Finally, Chvotkin added, since the proposed change would have a government-wide effect, PSC believes the House Judiciary Committee and others have an interest in considering this and other potential change to the Tucker Act of 1887. A House Judiciary Committee staffer said Wednesday the committee has opposed this provision in the past. PSC represents government contractors that provide services like engineering support and information technology (IT) work.
The Tucker Act permits three kinds of claims against the federal government: contractual claims, noncontractual claims where the plaintiff seeks the return of money paid to the government, and noncontractual claims where the plaintiff asserts that he or she is entitled to payment by the government.
A HASC staffer said Wednesday the committee doesn’t object to the proposal. Thornberry, he said, is not convinced of the size of the problem presented by “dual tracking” bid protests, but he doesn’t object to asking people necessarily to pick one path or the other. The staffer believes there is some evidence that the protest process is being abused to some degree beyond just having DoD enforce their own rules.
It is rumored that the House Oversight and Government Reform committee is also opposed to DoD’s provision. It did not return a request for comment by press time.