GAO Bid Protest Annual Report to the Congress for Fiscal Year 2003
Gao ID: GAO-04-355R January 30, 2004This letter responds to the requirements of the Competition in Contracting Act of 1984, 31 U.S.C. 3554(e)(2) (2000), that the Comptroller General report to 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 were two such occurences during fiscal year 2003.
GAO-04-355R, GAO Bid Protest Annual Report to the Congress for Fiscal
Year 2003
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United States Government Accountability Office:
Washington, DC 20548:
GAO-04-355R:
B-158766:
January 30, 2004:
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)(2) (2000), that the
Comptroller General report to 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 were two such occurrences during fiscal year 2003.
The Two Fiscal Year 2003 Protests:
(1) Consolidated Eng‘g Servs., Inc., B-291345, B-291345.2, Dec. 23,
2002, 2002 CPD ¶ 220.
The first occurrence of an agency not fully implementing a bid protest
decision involved a two-phase competition, pursuant to Office of
Management and Budget (OMB) Circular A-76, to select a commercial
offeror to compete against the government‘s ’most efficient organization
“ (MEO) under the A-76 cost comparison process for the operation,
maintenance, and repair of the Pentagon Heating and Refrigeration
Plant (H&RP) in Arlington, Virginia.
Consolidated Engineering Services, Inc. (CESI) protested the
Department of Defense‘s (DOD) rejection, as technically unacceptable,
of its proposal--the only one received from a commercial offeror in
the private-sector portion of the A-76 competition--at the second
phase of the competition, essentially for lack of relevant experience.
We sustained CESI‘s protest by decision of December 23, 2002,
concluding that neither the contemporaneous evaluation record nor
testimony elicited at a hearing that we conducted in this matter
reasonably supported the agency‘s decision. We recommended that the
agency reinstate CESI‘s second-phase proposal into the competition and
compare it with the government‘s MEO in accordance with the procedures
set forth in OMB Circular A-76 and the Revised Supplemental Handbook.
We also recommended that CESI be reimbursed the reasonable costs of
filing and pursuing its protest, including reasonable attorneys‘ fees.
After we issued our decision, the agency did not request that we
reconsider it or modify our recommendation for corrective action.
Rather, DOD advised that while it would reimburse CESI its costs, it
would notify our Office when a final decision was made as to how DOD
would proceed with respect to the remainder of our recommendation.
Subsequently, the agency advised that after a review of all of the
facts surrounding the procurement, it was ’unable to“ implement our
recommendation that CESI be further considered for award in the A-76
competition.
We reported the matter to the Congress on June 30, 2003, pursuant to
31 U.S.C. § 3554(e)(1), which requires our Office to report any case
in which a federal agency fails to fully implement a recommendation of
the Comptroller General contained in a protest decision concerning the
award of a federal contract. We recommended, pursuant to 31 U.S.C. §
3554(e)(1)(B), that in order to preserve the integrity of the
procurement process and the public/private competition process under
OMB Circular A-76, the Congress consider an inquiry into DOD‘s failure
to satisfactorily explain its decision not to comply with our
recommendation for corrective action.
Enclosed is a copy of our June 30 report, as well as a public version
of our decision explaining in greater detail the particulars
surrounding this procurement.
(2) Symplicity Corp., B-291902, Apr. 29, 2003, 2003 CPD ¶ 89:
The second occurrence involved a bid protest filed in our Office on
January 24, 2003 by Symplicity Corporation. In its protest, Symplicity
contested the Office of Personnel Management‘s (OPM) award of a task
order to TMP Worldwide, Inc. (d/b/a Monster Government Solutions)
under TMP‘s Federal Supply Schedule contract, pursuant to OPM request
for quotations (RFQ) No. SOLO30000003, for online federal employment
information services.
By decision of April 29, we sustained Symplicity‘s protest, in part,
because TMP‘s quotation included two labor categories that were not on
its General Services Administration schedule contract, and OPM
recognized but failed to realize the importance of this during the
evaluation. We also sustained Symplicity‘s protest of OPM‘s evaluation
of quotations with respect to systems integration costs. We
recommended that OPM evaluate vendors‘ quotations to determine whether
the proposed services were within the scope of their respective
Schedule contracts, and that OPM reopen discussions with all vendors
whose quotations were in the competitive range, and request and
reevaluate revised quotations. We also suggested that OPM may want to
amend its RFQ to further clarify its systems integration needs. On May
19, we dismissed OPM‘s request that we reconsider a portion of our
recommendation.
By letter of July 21, 2003, OPM notified our Office that it declined
to follow our recommendation, arguing that the recommendation was ’
incompatible with the best interest of the Federal Government“ and
that ’[n]ational security demands and critical domestic needs underlie
the Government‘s vital need for efficient recruitment and hiring
methods.“
On August 5, we reported the matter to Congress pursuant to 31 U.S.C.
§ 3554(e)(1). In our report, we made a made a number of observations
about OPM‘s position and, in order to preserve the integrity of the
procurement process, we recommended, pursuant to 31 U.S.C. §
3554(e)(1)(B), that Congress consider an inquiry into OPM‘s failure to
fully and promptly implement our April 29, 2003 recommendation. We
stated that such inquiry would help to identify any significant harm
to the procurement system that may have resulted from OPM‘s actions
and, together with any other congressional action, will serve to
preserve faith in the procurement system.
Enclosed, in addition to copies of our April 29 and May 19 decisions,
is a copy of our August 5 report, which more fully describes the
protest decisions and the circumstances of OPM‘s failure to implement
our recommendation.
Fiscal Year 2003 Bid Protest Statistics:
With respect to the remainder of fiscal year 2003 bid protest
activity, during the fiscal year we received 1,269 protests (including
48 cost claims) and 83 requests for reconsideration, for a total of
1,352 cases. We closed 1,244 cases: 1,181 protests (including 40 cost
claims) and 63 requests for reconsideration. Attached for your
information is a chart comparing the bid protest activity for fiscal
years 2001-2003.
A copy of this report, with the enclosure, is being furnished to the
Chairman and Ranking Minority Member of the House Committee on
Government Reform. A similar report is being furnished to the
President of the Senate.
Sincerely yours,
Signed by:
Anthony H. Gamboa:
General Counsel:
Enclosures:
Bid Protest Statistics for Fiscal Years 2001-2003:
Cases Filed:
FY 2003: 1,352 (up 12%[1]);
FY 2002: 1,204 (up 5%);
FY 2001: 1,146 (down 6%).
Cases Closed:
FY 2003: 1,244;
FY 2002: 1,133;
FY 2001: 1,098.
Merit (Sustain + Deny) Decisions:
FY 2003: 290 (issued in average of 79 days);
FY 2002: 256 (issued in average of 79 days);
FY 2001: 311 (issued in average of 79 days).
Number of Sustains:
FY 2003: 50;
FY 2002: 41;
FY 2001: 66.
Sustain Rate:
FY 2003: 17%;
FY 2002: 16%;
FY 2001: 21%.
Effectiveness Rate (reported)[2]:
FY 2003: 33%;
FY 2002: 33%.
FY 2001: 33%.
ADR[3] (cases used):
FY 2003: 120;
FY 2002: 145.
FY 2001: 150.
ADR Success Rate[4]:
FY 2003: 92%;
FY 2002: 84%;
FY 2001: 84%.
Hearings:
FY 2003: 13% (74 cases);
FY 2002: 5% (23 cases);
FY 2001: 12% (63 cases).
[1] From the prior fiscal year.
[2] Based on a protester's obtaining some form of relief from the
agency, as reported to GAO.
[3] Alternative Dispute Resolution.
[4] Percentage resolved without a formal GAO decision.
[End of enclosure]
[End of report]
