GAO and COFC decisions setting procurement policy

formerfed said:

…

Did you mean to say something, formerfed? 🤠

The title reminds me of something I read recently. The author discusses how tribunals create rules that are much harder for acquisition teams to find, read, and understand than statutes and regulations. 

When Recommendations Become Requirements: How the GAO’s “Non-Binding” Bid Protest Decisions Create Unofficial Procurement Rules Contracting Officers Are Expected to Follow. Michelle L. Miller. Public Contract Law Journal, Volume 53, Number 3, Spring 2024.

I learned a long time ago that laws, regulations and contracts mean what the courts say they mean.

The gist of the post I referenced along with a supporting article was that GAO decisions and COFC decisions sometime conflict.  But they are based on the same FAR language and their decisions can alter the way FAR gets implemented despite what common practices are. In essence, these bodies are setting new policy.  The author blames, in part, drafters of the FAR for this situation.  If the regulations are unclear or ambiguous, OFPP and the FAR Council need to take actions.

Somehow my original link changed or was faulty.  I can’t find it to repost.  But I’ll keep looking.

formerfed said:

Somehow my original link changed or was faulty.  I can’t find it to repost.  But I’ll keep looking.

@formerfed, is this the article:

Jamaal Valentine said:

The title reminds me of something I read recently. The author discusses how tribunals create rules that are much harder for acquisition teams to find, read, and understand than statutes and regulations. 

When Recommendations Become Requirements: How the GAO’s “Non-Binding” Bid Protest Decisions Create Unofficial Procurement Rules Contracting Officers Are Expected to Follow. Michelle L. Miller. Public Contract Law Journal, Volume 53, Number 3, Spring 2024.

joel hoffman said:

@formerfed, is this the article:

Joel, the one I referred to is more recent than that.  I don’t doubt that one contributed to the other though.

The article I cited is in the Spring 2024 volume, but the specific date of the article is August 21, 2024.

On 9/16/2024 at 11:18 AM, Jamaal Valentine said:

The title reminds me of something I read recently. The author discusses how tribunals create rules that are much harder for acquisition teams to find, read, and understand than statutes and regulations.

That is a very old complaint, especially about GAO. It goes back decades. And it's a valid complaint about GAO.