GAO Bid Protest Annual Report to the Congress for Fiscal Year 2002
Gao ID: GAO-03-427R January 29, 2003This 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 was one such occurrence during fiscal year 2002.
GAO-03-427R, GAO Bid Protest Annual Report to the Congress for Fiscal
Year 2002
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United States General Accounting Office:
Washington, DC 20548:
GAO-03-427R:
B-158766:
January 29, 2003:
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) (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 was one such occurrence during fiscal year 2002.
The occurrence concerned a bid protest filed in our Office by Rockwell
Electronic Commerce Corporation challenging the Social Security
Administration's (SSA) award of a contract to MCI WorldCom
Communications, Inc. for network-based call answering services; the
protest was the subject of a series of decisions by our Office. On
March 5, 2002 we reported the matter to Congress 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. Enclosed is a copy of that report, which
describes the protest decisions and the circumstances of the SSA's
failure to implement our recommendation. The following is a brief
summary.
In our first decision, issued on December 14, 2000, we sustained
Rockwell's protest on the basis that MCI's proposal had failed to
identify, and the agency had failed to evaluate, certain contract
costs that would be incurred under MCI's proposal, as required by the
solicitation. We recommended that the agency reopen the competition,
amend the solicitation as appropriate, request and evaluate revised
proposals, and make an award decision consistent with the terms of the
RFP and our decision. We also recommended that Rockwell be reimbursed
the costs of filing and pursuing its protest, including reasonable
attorneys' fees. We denied SSA's and MCI's requests for
reconsideration on April 19, 2001.
Following the reconsideration decision, SSA allowed only MCI to revise
its proposal, and limited revisions to the identification of the
previously unstated costs. Not surprisingly, given the limited nature
of the "corrective action," MCI's proposal was again selected for
award. Rockwell then protested this corrective action as being
inconsistent with procurement law and regulation, and our decision; on
August 30, 2001, we sustained Rockwell's second protest, reiterating
the recommendation stated in our first decision and further defining,
by example, appropriate corrective action. We also recommended that
Rockwell be reimbursed the costs of filing and pursuing its second
protest. SSA again requested reconsideration and, on September 20, we
denied the request.
By letter of November 5, 2001, SSA notified our Office that it would
not follow our recommendations. We also were advised that the agency
had declined to reimburse Rockwell's costs of filing and pursuing the
second protest, although SSA had reimbursed Rockwell's costs of filing
and pursuing the first protest. In response to a subsequent request
from Rockwell, we modified our prior decisions to recommend that SSA
also reimburse Rockwell's proposal preparation costs.
In our March 5 report, we recommended, pursuant to 31 U.S.C. §
3554(e)(1)(B), that Congress consider an inquiry into SSA's failure to
fully and to promptly implement our December 2000 recommendation. We
stated that, in our view, the inquiry should also examine the basis
for the agency's determination to continue performance by MCI
notwithstanding the protest and thereby incur almost half of the
potential contract cost of a service contract within the first year of
a contract with a potential term of over 7½ years. We recommended
that, in any event, Congress take such actions as necessary to ensure
that Rockwell's costs of pursuing this matter using bid protest
procedures, and its costs of preparing a proposal, are reimbursed.
With respect to the remainder of fiscal year 2002 bid protest
activity, during the fiscal year we received 1,139 protests (including
38 cost claims) and 65 requests for reconsideration, for a total of
1,204 cases. We closed 1,133 cases: 1,072 protests (including 40 cost
claims) and 61 requests for reconsideration. Enclosed for your
information are 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
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:
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: 0;
Civilian Agencies: 6.
[End of table]
Table B: Protests Filed Before Award- Protests Sustained Where
Contracts Awarded After Protest Filing:
Defense Agencies: 0;
Civilian Agencies: 0.
[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: 24;
Civilian Agencies: 18.
Where agency found that continued performance was in Government's best
interest:
Defense Agencies: 7;
Civilian Agencies: 16.
[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: 0;
Civilian Agencies: 2.
Where agency found that continued performance was in Government's best
interest:
Defense Agencies: 3;
Civilian Agencies: 3.
[End of table]
[End of enclosure]
[End of report]
