The long-awaited study by the RAND Corporation (RAND) that was performed pursuant to Section 885 of the 2017 National Defense Authorization Act (NDAA) was delivered to Congress on December 21, 2017 and released to the public last week. Not only does RAND clearly explain with data the reasons for the Government’s long-standing decision to have a robust bid protest system to review of agencies’ procurement decisions, but RAND’s data, analyses, and recommendations also undercut most of the incessant (and growing) calls for restrictions on bid protests. Among other things, the RAND report demonstrates that there is no basis for the “pilot program” of restrictions imposed by Section 827 of the 2018 NDAA—which requires payment of agencies’ “costs incurred in processing” bid protests by large Government contractors in the event a challenge is not successful.
As RAND explained, the Government, “is a powerful entity in the economy,” and has a “moral duty to maintain fairness in how it awards large contracts.” The Government also needs to “deter and punish ineptitude, sloth, or corruption of public purchasing officials” (among other reasons for the bid protest system). For years, there have been complaints about the purported abuse of the bid protest process by contractors and unnecessary delays resulting from excessive bid protests. Although the officials calling for restrictions on bid protests were presumably able to present their best evidence and arguments to RAND’s independent analysts, the empirical data simply does not support the restrictions sought. The annual complaints about bid protests in the run-up to each year’s NDAA should cease—and Section 827 of the 2018 NDAA should be repealed.