Bid Protests: GAO or the Courts

I would prefer to see the GAO retain bid protest jurisdiction. In fact, I would prefer that the COFC get out of the bid protest business. But, I know this will not happen.

First, the GAO knows the procurement legislation and processes better than COFC judges. This superior knowledge allows the GAO to issue decisions more quickly than the COFC and to be more consistent with the practices flowing from procurement law and regulation. Second, the GAO will issue a single decision, and it will follow precedent. The COFC takes longer than GAO, and its 16 judges can issue different decisions on the same topics. Third, the GAO decisions are expressed more clearly and are, therefore, more readily comprehensible than the COFC decisions.

These are my opinions based upon my years of experience in procurement. I do not have any empirical evidence to support them.

bob7947 said:

Do you believe that the GAO's bid protest jurisdiction be removed from GAO?  If you believe GAO's bid protest jurisdiction should by removed why?  

Do You believe jurisdiction to hear bid protests should be limited to the courts?  If so, why?

Counterpoint:

I am for removing bid protest jurisdiction from the GAO. I think that a protest system should not allow for three bites at the apple as it does now (agency, GAO, courts). I don't think that's efficient. I think you should get one bite (choose agency or COFC) and an opportunity to appeal from either forum to the CAFC (like the disputes process).

Further, when GAO decisions conflict with the COFC, it allows protesters to forum shop and can put contracting officers in a no-win situation (i.e., if I follow course of action A, we probably lose at the GAO. If I follow course of action B, we probably lose at the COFC). I understand that decisions of individual judges can conflict within the COFC, but a protester doesn't get to pick their judge(s). 

I prefer to have one binding decision, even if I don't agree with it. 

Bob,

This would make for a good poll.

I think protests should be quick and inexpensive to resolve. For that reason, I prefer GAO to the COFC, and I would end the court's jurisdiction. I do not think there should be any appeal from a GAO decision, meaning that GAO should not entertain requests for reconsideration.

Don:

I'm going to make it a poll beginning next week.  The way things are now, it could go:  DoD--GAO--COFC--CAFC--SCOTUS.  I assume that if CAFC sent a protest back to COFC and the protester didn't like what the COFC did, the protester could appeal it back to CAFC, but I'm not sure.    I would take bid protest jurisdiction away from all Courts.  Currently, according to Rand, GAO disposes of protests in an average of 41 days while COFC takes 133 days.

One possibility is to limit jurisdiction of all bid protests of a certain amount of money to the agency--maybe $1 million.  Anything over that would go to GAO for a final decision.  The courts' jurisdiction would be eliminated and it would end with GAO.  I would keep the limits imposed by Congress on GAO, keep the stay, and continue to limit GAO's decision to a recommendation to the Executive branch.  GAO squeals on agencies that do not follow its recommendations to Congress.  If agencies want to go before Congress to explain, that is the agency's decision.  In truth, there are few GAO recommendations that are not followed.

GAO has a more transparent process than any court--I found this process last night.  These are some possibilities that could be discussed here before we go to a poll.

Are there any statistics anywhere on the amount of time it takes an agency to resolve an agency protest?  I don't know if Rand looked at that.

bob7947 said:

Are there any statistics anywhere on the amount of time it takes an agency to resolve an agency protest?  I don't know if Rand looked at that.

They did, and there aren't.

One of my thoughts was to restrict protests to the awarding agency for procurements below $1 million.  I am skimming the Rand study now and found that they included it as an option in their report for lesser value procurements.  However, there may not be enough known about the value of the agency level protest anywhere.  I'll keep looking.

Quote

Consider implementing an expedited process for adjudicating bid protests of procurement contracts with values under $0.1 million. One possible option is a process analogous to how traffic tickets are adjudicated in traffic court or how cases are adjudicated in small-claims court. A different approach would likely be needed for each venue.  For example, COFC could “rule from the bench” on such smaller-value protests and not be required to generate written decisions. (This would limit the protester’s ability to appeal, however.) Another option is to require alternative dispute resolution for such small-value protests at GAO. Some discussion with each venue would be necessary to develop the most appropriate approach. Another but perhaps less desirable approach from a fairness perspective would be to restrict such low-value procurement protests to the agency level. Our recommendation is to come up with a quick way to resolve these cases commensurate with their value while preserving the right to an independent protest.  (I added the italics and underline.)

Found this and it looks to be relevant to the discussion.

https://www.pillsburylaw.com/images/content/2/3/v2/2393/7CB22233F651CC7414DA9156569A4F4A.pdf

H2H:

That document looks familiar.  We may have discussed it here once but I cannot remember for sure.  Maybe someone else will recognize it.

A large number of articles about GAO bid protests have been published in law reviews and legal newsletters. The one cited above is a drop in the bucket.

The one cited by H2H was discussed here.  I remember it after breezing through the article.

The first thing everyone should remember is that bid protests, that are actually recorded somewhere, are an aberration in the contract award process.  According to the Rand study, protests are made on less than 1 percent of DoD procurements. 

Another item is that there is no infomation on agency level protests, as Rand reported.  In addition, I looked at GAO's footnote to its claimed Effectiveness Rate.  Here it is:

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Based on a protester obtaining some form of relief from the agency, as reported to GAO, either as a result of voluntary agency corrective action or our Office sustaining the protest.  This figure is a percentage of all protests closed this fiscal year.  (I added the italics.)

It is unclear to me what Effectiveness Rate really means.  Does it include an agency's voluntary corrective action that has nothing to do with GAO?  Also look at the last sentence in the quoted footnote above.  It appears that Effectiveness Rate may be based on dismissed, denied, and sustained protests.  Maybe someone else has an idea of what it means.

So, we have nothing on agency level protests and a fuzzy, at least to me, GAO Effectiveness Rate.  The Courts' information is between nothing and fuzzy.  Forget all that.

Let's look at the timeline for deciding protests.  Agency level protests are to be done in 35 days according to the Executive Order setting up the program.  According to law, GAO has 100 days.  The COFC, CAFC, and SCOTUS can take their good old time.  The cost of filing protests is supposed to be cheap and informal at the agency level, somewhat more expensive and formal at the GAO, and whatever the protester can endure at the court level.  

The timelines and costs present some possibilities.  If we get rid of agency level and GAO protests and keep only court protests, we may have a substantial reduction in protests because of the assumed costs and time involved in the court system.  That would be because potential cost and time may outweigh the potential benefits.  If we keep agency level and GAO protests and eliminate the Courts from having jurisdiction, little may change because the courts do not have the bid protest workload that GAO has now.  If we eliminate the courts' jurisdiction and keep GAO and agency level protest jurisdiction but make protesters pay the full cost at GAO, we may have an overall reduction in the number of protests or simply an increase in agency level protests.  Maybe my answer is:

• requiring protests on under $ 1 million procurements to be restricted to agency level,  
• requiring all other protests to go to GAO with protesters picking up the full cost, and
• eliminating the courts' juisdiction for bid protests.

I'm really not sure what to do.  With nearly 5,000 registrations at the Wifcon Forum, it would be nice to hear from others, in addition to the 20 or so regulars that contribute here.

Before I make a recommendation for change, I would want to understand sustention rates. What percentage of GAO decisions that are subsequently refiled at COFC are sustained/confirmed? How many are non-sustained? What percentage of protests are non-sustained or remanded for corrective action at the Appellate level?

If we see that GAO or COFC gets it wrong, and it takes a Court of Appeals decision to get it "right," then I would like protesters to have as many bites at the apple as possible. However, if an appellate reversal/remand is one-in-a-thousand, then that's a remedy that protesters probably do not need.

Two points:

1. We need a protest system in order to convince industry that government contracting is conducted on the up and up. But there is a tradeoff between preventing government employees from going wild and delaying government operations.

2. The most significant effect of the protest system on acquisition is not delay of government operations, but the effect of (a) uncertainty about the rules and (b) tactics to avoid and mitigate the effects of litigation. That effect on acquisition is more insidious. For an example, see First Financial Associates, Inc. B-415713, B-415713.2: Feb 16, 2018.  (March 2, 2018).

Vern Edwards said:

That effect on acquisition is more insidious. For an example, see First Financial Associates, Inc. B-415713, B-415713.2: Feb 16, 2018.  (March 2, 2018).

Who is guilty of the insidiousness - Secret Svc or contractor?

napolik said:

Who is guilty of the insidiousness - Secret Svc or contractor?

What the First Financial decision shows, although you have to know some statutory, case law, and regulatory history, 1961 - present, in order to understand, is that the concepts and benefits of "negotiated" procurement and "best value" decision-making have been undermined by GAO decisions and subsequent regulatory issuances about clarifications and discussions during source selection, historically one of the most contentious of all protest issues. That history and its long-term systemic effect are discussed in the March issue of The Nash & Cibinic Report, in Postscript: The Rand Study of DOD Protests.

The many GAO decisions were part of its "project" to perfect the concept of "competitive" negotiation by supplementing statute and regulation through case law development. The insidiousness lies in turning an administrative process into a confusing, wasteful litigative process.

Perhaps greater use of FAR Part 13, and/or Sub parts 8.4 and 16.5, in lieu of FAR Part 15, would reduce the insidiousness as FAR Sub part 15.3 procedures would not apply!?

I don't think so. Those processes, often constructed on the basis of the FAR Part 15 Process Model, have been effected in the same way.

To improve contractor selection and contract formation, we need to rethink them entirely, but that is beyond the imaginations of those presently in charge. I really have very few hopes.

Vern Edwards said:

I don't think so. Those processes, often constructed on the basis of the FAR Part 15 Process Model, have been effected in the same way.

Well, don't construct them like the 15.3 process. Try other approaches that are more efficient and , more importantly, more effective.

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Since FAR 15 does not apply, how does this approach strike readers?

Quote

The agency will assess the résumés, experience, past performance, and the price of quotes in accordance with FAR Subpart 8.4. Non-price factors, when combined, are significantly more important than price. After this assessment, the contracting officer may award a contract to the contractor he or she determines to represent the best value, or may obtain additional information from and negotiate with that contractor to improve the terms of the deal reflected in its quote. If the contracting officer is unable to negotiate a favorable deal with the contractor, he or she reserves the right to negotiate and reach agreement with another firm submitting a quote that was not assessed initially to be the best. This process will continue until a contract has been reached or until all those firms submitting a quote have been considered. If agreement on a deal cannot be reached with any of the firms, negotiations may be reopened with all firms or the solicitation may be canceled.

Unquote

/threads/1205-gsa-buys-award-without-discussions

As an example of what can happen in the Bid Protest arena.  From one of our blog entries.

As One Protest Door Closes, Another One Opens

Such protests are outliers. They are not representative of the protest system or its effects. They distract from the real harm that has been done to the acquisition process by more than 50 years of GAO "case law" rule-making.

One factor in bid protests such as the one described in the blog post is the use of multiple year, multiple-award IDIQ contracts. Any company that is not among the winners in such a competition is effectively out of the market for five to ten years. With so many competitors and proposals (47 in the Department of Education case), it's easy for an agency to make a misjudgment or mistake, and a company cannot just shrug its shoulders at a loss. It could be a kind of suicide. Some of those protests are filed in the hope that the agency would rather relent and let them in than fight.

The multiple year, long-term (five years or longer), multiple-award IDIQ contract, formally recognized by FASA in 1994, has changed acquisition in ways that most people simply do not understand. It is a costly method of contracting. It was supposed to be a labor-saving mechanism, but I don't know of any documented evidence of how well it has been, if at all. It has undermined acquisition planning, and there is no evidence that I know of that it has produced better overall value for the government. If ever a policy needed to be studied and assessed, it's multiple-award IDIQ contracting.

If you think protest numbers are high, think what those numbers would be if there were no limit on task order protests. And that limit is not a benefit of multiple-award IDIQ contracting, per se, but to Congress's surrender to the reality of the acquisition chaos that began in the early 1980s and has since overwhelmed the process.

In military terms, the federal acquisition process, which is based on a 19th Century process model, has been overrun by the realities of modern government. The survivors are hoping to get away by playing dead until the enemy leaves the battlefield.

Our 19th Century acquisition system (statutes, regulations, policies, standard processes) cannot effectively support U.S. government operations in the 21st Century.

Is it feasible to go line by line in FAR Part 15 and identify the original GAO decision or advice that caused it? 

I seem to remember that the first 6 circumstances that permit contracting without providing for full and open competition were from GAO, possibly in a comment on the bill at the request of Congress. I always thought Congress added #7, Public Interest, on its own as a safety net.  There was a GAO bid protest attorney working with Congress during the writing of CICA, so some things may not have been formally done.

I agree that GAO was a major factor in the rules for source selection.  We can probably find their marks in Part 14 also.  While I was there, GAO would have periods of time that they were very concerned about Congress thinking they were interpreting--writing--legislation.

Soon after Congress provided the fair opportunity provision at FAR Part 16, I had noticed that agencies were using the wrong exception to fair opportunity when it was being used.  When I brought it up to the attorney that I was working with, I was told to stay away from anything about the exceptions to fair opportunity.  Since I have been adding decisions to this site, I do not remember ever posting a decision involving the use of any exception to fair opportunity.  Maybe my memory has failed me but I do not remember posting any.

bob7947 said:

Is it feasible to go line by line in FAR Part 15 and identify the original GAO decision or advice that caused it?

Not every line in Part 15, but many lines in Subpart 15.3. There is no question in my mind that GAO was regulating in the guise of protest decision making, and that they were doing so before they had a statutory mandate to do so.

if we go the route of eliminate GAO and instead use COFC:

eliminate the GAO

raise the dollar thresholds to eliminate COFC jurisdiction for smaller contracts

hire some of the best GAO bid protest attorneys and convert them to judges at the COFC

let the other COFC judges focus on intellectual property and other issues, let the judges specialize

impose a timeline for bid protests at the COFC

(basically, take the speed and expertise of the GAO and move it to COFC)

PepeTheFrog said:

if we go the route of eliminate GAO and instead use COFC

Fashioned after the "Vaccine Court", maybe?

When you talk about the Courts, you are talking about a junkyard of jurisdiction as the quotes I provide below show.  You do not get specialization.  Below is the jurisdiction provided by the U. S. Court of Federal Claims. 

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Jurisdiction

What kind of cases are heard by judges of the court?

As established by Congress in 1855, the purpose of the court is to allow citizens to file claims for money against the federal government.  To read more about the court’s history, please click here.  The court has nationwide jurisdiction and its judges may hear cases anywhere in the United States.

What is the scope of the court’s jurisdiction?

The court is authorized to hear primarily money claims founded upon the Constitution, federal statutes, executive regulations, and contracts (express or implied in fact) with the United States.  The court’s primary jurisdiction lies in 28 U.S.C. § 1491, known as the Tucker Act.  Under this and other statutes passed by Congress, the court may hear a variety of specialized claims against the federal government including contract claims, bid protests, military pay claims, civilian pay claims, tax claims, Indian claims, takings claims, Congressional reference cases, vaccine injury claims, and patent and copyright claims.

The jurisdiction of the next court in line, the U. S. Court of Appeals for the Federal Circuit, has a broader jurisdiction.  You don't get one without the other.  Below is the jurisdiction for the Federal Circuit which is also referred to as the CAFC.

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The Federal Circuit is unique among the thirteen Circuit Courts of Appeals. It has nationwide jurisdiction in a variety of subject areas, including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, veterans' benefits, and public safety officers' benefits claims. Appeals to the court come from all federal district courts, the United States Court of Federal Claims, the United States Court of International Trade, and the United States Court of Appeals for Veterans Claims. The court also takes appeals of certain administrative agencies' decisions, including the United States Merit Systems Protection Board, the Boards of Contract Appeals, the Patent Trial and Appeal Board, and the Trademark Trial and Appeal Board. Decisions of the United States International Trade Commission, the Office of Compliance, an independent agency in the legislative branch, and the Government Accountability Office Personnel Appeals Board, and the Department of Justice Bureau of Justice Assistance also are reviewed by the court. Many of the administrative law cases consist of personnel and veterans claims. Nearly all of the intellectual property cases involve patents. Suits for money damages against the United States government include government contract cases, tax refund appeals, unlawful takings, and civilian and military pay cases.

The above jurisdictions are not going away.

I would prefer to keep all three venues, but narrow the scope of what can be protested at each venue. I would also limit the number of supplemental protests that can be filed as its been my experience that protesters often file on one issue, and then through the use of supplemental protests either continue to file additional claims, no matter how outlandish with the hopes that the agency will relent and just take corrective action rather than continue to respond to additional supplemental protests. 

I would propose that for matters relating to the analysis of proposals or if an Offeror disagreed with how the agency handled its proposal individually, that it should be limited to protesting only to the agency. For matters where the agency was bias between multiple Offerors, GAO should be the venue, and for matters relating the agency's interpretation of statues, the COFC.

Serious and slightly related question. Does anyone feel like the Corrective Action process needs to be looked at? Both Industry and Government seem to lean on it as a crutch. The government knows they can always stop a GAO process and use it if they see an unfavorable outcome. Industry knows that if they can create enough smoke, a CA is likely. I think a lot of issues would be corrected if GAO took a more active route in making sure the CA is a valid plan that will actually work. Instead you have these large procurements that seem to be in a carousal of award, protest, CA, award, protest, CA etc...  Just my 2 cents

@sdvr

Very interesting observation. Worthy of further research.

I've been looking at the number of protests that I have posted on corrective actions when something else caught my attention.  It was under remedies in GAO's protest regulations.  Here is the item:

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§ 21.6 Withholding of award and suspension of contract performance.

Where a protest is filed with GAO, the agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d); GAO does not administer the requirements to stay award or suspend contract performance under CICA at 31 U.S.C. 3553(c) and (d).  (My emphasis)

You can find 31 U.S.C. 3553(c) and (d) here.

GAO is notified under 31 U.S.C. 3553(d) but, according to its regulation above, walks away from administering the Stay.   Over the years, I have not posted anything about the Stay in that category.  Maybe GAO dismisses them outright.  However, the COFC does hear complaints dealing with stays in addition to its issuing of injunctions.  It is another area that may need some clearing up, if the courts are removed from the protest business.  Here is the link to the Wifcon.com's protest page on 4 CFR 21.6: Withholding Award, Suspending Contract Performance, Override of Stay, Injunction.  Court decisions are filed under the GAO regulation because I did not start adding court protests until after I started adding GAO decisions.   As you can see, I have not added any GAO decisions on the Stay.

@bob7947 Out of curiosity, is it easy to see how many COFC cases went through multiple rounds of Corrective Actions at GAO?

It is you have a good electronic research tool, like Westlaw or LEXIS. Otherwise, you can do it, but it's not so easy.

I deleted a post by mistake.

sdvr:

I found a protest that might interest you.  It is posted now.  I added the following caption on the Home Page:

Successive protests and successive rounds of corrective action at GAO, protest to the Court with further corrective action--2014 to 2018.  See DZSP 21, LLC v. U. S. and Fluor Federal Solutions, LLC, No. 18-86C, March 29, 2018.  (April 2, 2918)

Let me explain why the Protest Pages look as they do so there is no confusion.  I post the excerpts that I think are key issues that readers can brief and decide if they want to read the entire protest.  At the end of the excerpt is the full protest.

In the case of this protest, I placed it under corrective action taken by an agency and highlighted the protests and corrective actions.

Very interesting reads. Trying to pick out a common theme, but need to read through a few more times. At the very least it seems as though the initial corrective actions were flawed, which led to multiple rounds of GAO. I go back to my original point, a CA should not be an instant do over, GAO needs to evaluate the potential success of the CA.  And while this only goes back 4 years, some of these cases are still active and yet to be resolved...  

Bob - Thanks for the work here and on this site!