Now that the GAO no longer has authority to hear protests of many task order awards valued under $10 million, it is fair to question whether the absence of the self-policing system established by the protest mechanism could contribute to unreasonable or improper task order awards.
According to a report issued by the Department of Defense Inspector General last Friday, at least one agency, the Naval Facilities Engineering Command, has experienced some troubling irregularities in the MAC task order award process, including twice failing to permit all MAC holders to bid on task order competitions.
In its investigation, the DoD IG reviewed 20 task orders, valued at $101.2 million, awarded under 4 NAVFAC MACs. The resulting report documented two primary irregularities in the MAC task order award process.
First, although the DoD IG stated that MAC holders “generally” had a fair opportunity to compete for task order work, problems occurred on two of the 20 task orders reviewed. Specifically, on each of these two task order competitions, NAVFAC failed to provide all MAC holders with equal notice of the competition, depriving some MAC holders of the ability to compete.
Second, NAVFAC failed to adequately document price reasonableness on six task orders, valued at $45.6 million. A similar problem arose with respect to modifications to several task orders.
The problems identified in the DoD IG report cannot be blamed solely on the lack of a bid protest mechanism (bid protests would not have occurred with respect to the price reasonableness problems, for example, because in each case the awardee was the only bidder). Nevertheless, the report is troubling, particularly with respect to the lack of fair opportunity on 10 percent of the task order competitions in question.
In my mind, it is not good enough for the government to “generally” provide a fair opportunity for contractors to compete. Obviously, this report is a small sample and it may not be fair to draw government-wide conclusions. Nevertheless, it makes me wonder whether some sort self-policing system–whether a formal bid protest or otherwise–might one day be worth considering for task order competitions.