Sec. 818. Government Accountability Office bid protest process enhancement
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Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall revise the Defense Supplement to the Federal Acquisition Regulation to establish procedures for a contracting officer of the Department of Defense to file a claim against a contractor that files a covered bid protest. The procedures required by paragraph
(1)shall ensure the following: A claim described in paragraph
(1)shall be filed in accordance with chapter 71 of title 41, United States Code. Any remedy shall be limited to the disgorgement of any profits and fees earned by the incumbent contractor in the performance of a covered contract during the disgorgement period. Amounts received as result of a claim described in paragraph
(1)shall be credited to the fund or account that was used to cover the costs of the covered contract, or, if the period of availability of obligations for the appropriation from which such costs were paid has expired, to the appropriations of a fund or account that is currently available to the Secretary for the same purpose. Amounts so credited shall be merged with amounts in such fund or account and shall be available for the same purposes, and subject to the same conditions and limitations, as amounts in such fund or account. In this subsection: The term covered bid protest means a bid protest— that was filed with the Comptroller General of the United States by an incumbent contractor; that was dismissed by the Comptroller General based a lack of any reasonable legal or factual basis; and for which such dismissal was finally determined. The term covered contract means a contract with the Department of Defense entered into with the incumbent contractor for the acquisition of goods or services by the Department during the disgorgement period that are the same or substantially similar to goods or services to be acquired by the Department under the contract previously awarded to the incumbent contractor. The term disgorgement period means the period of performance under a contract that was awarded or extended because the Department of Defense received notice of a protest by the incumbent contractor and was prohibited from awarding a new contract during the pendency of such bid protest under section 3553(c) of title 31, United States Code. The term finally determined , with respect to the dismissal of a bid protest, means dismissal— was not appealed and is no longer appealable because the time for taking an appeal has expired; or was appealed and the appeals process for which is completed. The term incumbent contractor means a contractor under a contract with the Department of Defense for the acquisition of goods or services by the Department that are the same or substantially similar to goods or services to be acquired by the Department under a new or follow-on contract that is the subject of a covered bid protest. Section 3553 of title 31, United States Code, is amended— by amending subsection (c)(3) to read as follows: For the purposes of the written finding under paragraph (2)(A) with respect to a contract for a procurement by a component of the Department of Defense, the head of the procuring activity may make the finding under such paragraph for such contract if such head of the procuring activity determines that the performance of such contract would facilitate the national defense. ; and in subsection (d)(3), by adding at the end the following new subparagraph: For the purposes of the determination under paragraph (2)(B) with respect to a contract for a procurement by a component of the Department of Defense, a contracting officer may not determine that immediate performance of such contract is not in the best interests of the United States if the contracting officer determines that performance of the contract would facilitate the national defense. .