GAO Bid Protest Annual Report to the Congress for Fiscal Year 1998
Gao ID: B-158766 January 29, 1999GAO Bid
Protest Annual Report to the Congress for Fiscal Year 1998
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Comptroller General of the United States:
Washington, DC 20548:
B-158766:
January 29, 1999:
The Honorable J. Dennis Hastert:
Speaker of the House of Representatives:
Dear Mr. Speaker:
This letter responds to the requirements of the Competition in
Contracting Act of 1984, 31 U.S.C. § 3554(e) (Supp. II 1996), that the
Comptroller General report to the Congress each instance in which a
federal agency did not fully implement a recommendation made by our
Office in connection with a bid protest decided the prior fiscal year.
There was one such occurrence during fiscal year 1998.
In Pemco Aeroplex, Inc., B-280397, Sept. 25, 1998, 98-2 CPD ¶ 79, we
considered a challenge to an Air Force solicitation that bundled
together into one procurement a significant portion of the workload
currently performed by the Sacramento Air Logistics Center, which the
Base Realignment and Closure Commission recommended be closed by July
2001. We sustained the protest because we concluded that the Air Force
had failed to show that combining this workload into a single
solicitation was reasonably required to satisfy the agency's needs. We
recommended that the Air Force cancel the solicitation and resolicit its
requirements without bundling these workloads.
The Air Force decided to proceed with contract award under the
solicitation despite our decision. The Undersecretary of Defense for
Acquisition and Technology has advised the Congress that the Air Force
decision was driven by a conclusion that implementation of our
decision's recommendations would harm Air Force readiness. In an
argument that had been considered and rejected by our Office as
insufficient, the Air Force stated that the risk to readiness of
unbundling the KC-135 portion of the Sacramento workload was
unacceptable.
In response to the Air Force refusal to follow the recommendation in
our decision, Pemco Aeroplex filed a lawsuit in the United States
District Court, Northern District of Alabama. That lawsuit, Pemco
Aeroplex, Inc. v. Cohen (Civ. Action No. CV-98-J-2584-S), seeks a
ruling that the Air Force solicitation, and subsequent action, are
improper. The case is pending before the court.
Our Office has conducted a comprehensive review of this procurement.
Public-Private Competitions: Processes Used for Sacramento Depot
Maintenance Award Appear Reasonable (GAO/NSIAD-99-42, Nov. 23, 1998).
We make no recommendation for further congressional action pursuant to
31 U.S.C. § 3554(e)(1)(B) at this time.
Regarding the rest of the bid protest activity during the fiscal year,
we received 1,427 protests (including 29 cost claims) and 139 requests
for reconsideration for a total of 1,566 cases. We closed 1,600 cases:
1,467 protests (including 29 cost claims) and 133 requests for
reconsideration. Enclosed for your information are some statistics
concerning suspensions of contract awards and performance as a result
of bid protests.
A copy of this report, with the enclosure, is being furnished to the
House Committees on Government Reform and Appropriations. An identical
report is being furnished to the President of the Senate.
Sincerely yours,
Signed by:
Robert P. Murphy, for:
Comptroller General of the United States:
Enclosure:
Suspension of Award/Performance Data:
Background:
CICA contains several provisions whose purpose is to enhance the
likelihood that protests can be decided before contract performance
reaches a stage at which corrective action is effectively precluded.
Where an agency is notified of a protest before award, CICA precludes
an award unless the head of the procuring activity makes certain
findings justifying the award. In cases where notice is received
within 10 days following the date of award or within 5 days after a
required debriefing, CICA requires the suspension of performance
unless the head of the procuring activity makes certain other findings
justifying the continuance of performance despite the protest.
Data:
The following tables present data regarding the number of contracts
awarded after a protest was filed (table A), the number of protests in
table A in which GAO sustained the protest (table B), the number of
contracts in which performance was not suspended following a protest
(table C), and the number of cases sustained by GAO in which
performance was not suspended (table D).
Table A: Protests Filed Before Award- Contracts Awarded After Protest
Filing:
Defense Agencies: 8;
Civilian Agencies: 11.
[End of table]
Table B: Protests Filed Before Award- Protests Sustained Where
Contracts Awarded After Protest Filing:
Defense Agencies: 0;
Civilian Agencies: 1.
[End of table]
Table C: Protests Filed After Award- Contracts in Which Performance
Was Continued:
Where agency determined that urgency justified continued performance:
Defense Agencies: 23;
Civilian Agencies: 16.
Where agency found that continued performance was in Government's best
interest:
Defense Agencies: 22;
Civilian Agencies: 23.
[End of table]
Table D: Protests Filed After Award- Protests Sustained Where
Performance Was Continued:
Where agency determined that urgency justified continued performance:
Defense Agencies: 1;
Civilian Agencies: 2.
Where agency found that continued performance was in Government's best
interest:
Defense Agencies: 3;
Civilian Agencies: 4.
[End of table]
[End of enclosure]
[End of report]
