2017 NDAA Reiterates GAO Bid Protest Reporting Requirements

Under the Competition in Contracting Act, the Government Accountability Office is required to issue an annual report to Congress that summarizes the “most prevalent grounds” of sustained protests, identifies the instances in which GAO was not able to decide a protest within its 100-day deadline, and list any protest where the agency did not follow GAO’s recommendations.

The 2017 National Defense Authorization Act doubles down on this first requirement: it mandates that GAO provide Congress with a list of the most common grounds for sustaining protests. This only begs the question: why would Congress require GAO to do something it’s already required to do (and that it’s already doing)?

One possible explanation is that Congress is not getting the information it wants. That is, Congress might want more detail than GAO currently provides. For instance, in its Fiscal Year 2016 Annual Report, the GAO’s list of common grounds for sustained protests included only four items: “(1) unreasonable technical evaluation; (2) unreasonable past performance evaluation; (3) unreasonable cost or price evaluation; and (4) flawed selection decision.”

Broad categories like these don’t offer much in the way of helpful information for agencies to improve the acquisition process. If GAO were able to provide additional detail,  it might enable new rules or procedures that improve the procurement process.

In fairness to GAO, though, its ability to provide anything beyond broad generalizations is very limited. Each protest relates to a different solicitation, issued by a different agency, with different technical requirements, different evaluation criteria, and different source selection procedures. GAO can probably do better than “unreasonable technical evaluation,” such as (for example) something like “use of unstated evaluation criteria in technical evaluation.” But beyond that, the differences between each solicitation and evaluation would make summarizing the similarities between sustained protests nearly impossible.

The 2017 NDAA was signed into law on December 23, 2016. Now that the 2017 NDAA is the law of the land, it will be interesting to see what additional information—if any—is included in GAO’s FY 2017 Annual Report.