bid protests: the costs are real, but the benefits...

BID PROTESTS: THE COSTS ARE REAL, BUT THE BENEFITS OUTWEIGH THEM

Daniel I. Gordon*

[Note for student editors: Will you insert a table of contents and format the headings of the article consistent with PCLJ’s procedures?]

* See id.Daniel I. Gordon, In the Beginning: The Earliest Bid Protests Filed with the US General Accounting Office, 13 PUB. PROCUREMENT L. REV., no. 5, 2004, at NA147.

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Nichole Best, 01/22/13,

Should “The” in “The George Washington University” be capitalized? NAB

TABLE OF CONTENTS

I. Introduction..............................................2

II. Administrative and Judicial Venues for Filing Protests in the U.S. Federal System...................................3

III. Spread of the Protest Process Outside the U.S.............6

IV. Correcting Misperceptions About Protest Statistics.......10

A. Protests Are Rare Events............................10

B. It is Rare for a Protester to Win a Protest and Even Rarer for a Winning Protester to go on to Obtain the Contract at Issue in the Protest....................18

V. Costs of the Protest Process.............................26

VI. Benefits of the Protest Process..........................40

VII. Conclusion: The Costs Are Overstated and the Benefits Outweigh Them............................................45

I. Introduction

This article discusses the benefits and costs of bid

protests, which are —legal challenges brought by an offerorsa

bidder againstto the way the gGovernment has conducted itsa

procurements.1 In the U.S.United StatesU.S. federal procurement

1 See generally William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 Admin. L.J. Am. U. 461 (1995).id. at NA154-57 (describing the debate within the Comptroller General’s Office’s internal debate about whether it had jurisdiction to hear bid protests); Note, The Comptroller General of the United States: The Broad Power to Settle and Adjust All Claims and Accounts, 70 HARV. L. REV. 350, 360-61 (1956) ( arguing that the Comptroller General’s role in government contracting was too broad and would cause harm federal agencies).

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Michael F Mason, 01/22/13,

Note for student editors: Does “U.S.” need to be defined first time it is used?

Kristen Birdsall, 01/22/13,

This should prob be reverted back to bidder because he is talking about bid protests specifically KSB

system, bid protests have existed since the 1920s.2 Despite its

longevity, however, Ccritics have come to characterized the bid

protest process as burdensome and overly complexand it is the

author’s impression that criticism arguing that they protests are

more trouble than they are worth has been around for nearly that

long.3 Thise article explains why, in the author’s view, the

benefits of the bid protest system substantially outweigh the

burdens that it imposes on the procurement system.

II. The Administrative and Judicial Venues for Filing Bid Protests in the U.S. Federal System

It was in the U.S. that the first litigation leading

toresulting in what came to be recognized as a bid protest

decision took placeThe United States has had a forum for bid

protestsbid protest forum since the 1920s, when GAO took up its

first protest.4 IIn 1924, a few companies began writing to

company filed a complaint with the then -relatively new General

2 See In the Beginning, supra note 2, at NA147.Comptroller General McCarl to the Governor, the Panama Canal, 5 Comp. Gen. 712, A-11259 (Mar. 9, 1926).3 Today’s Government Accountability Office (GAO) was founded in 1921 as the General Accounting Office. See Budget and Accounting Act of 1921, Pub. L. No. 67-13, § 301, 42 Stat. 20, 23. Effective July 7, 2004, the GAO's legal name became the Government Accountability Office. See GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, § 8(a), 118 Stat. 811, 814 (2004)Effective July 7, 2004, the GAO's legal name became the Government Accountability Office. Pub. L. 108-271, 118 Stat. 811 (2004). This article uses the acronym “GAO” interchangeably to refer both to the current Government Accountability Office and its immediate predecessor, the Government Accounting Office. 4 See In the Beginning, supra note 2, at NA154-62.

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Dean Gordon had revised this to read “Beginning in 1924, . . .” I removed “Beginning” because it felt repetitive to have “Beginning” and then “began” a few words later. NAB


Would it be beneficial to have a roadmap here?? NAB


No FN. Overview. NAB

Adam, 01/22/13,

ST and KL – NB’s point is well taken, but I feel a roadmap here is not necessary. The intro succinctly accomplishes its purpose. AAB

Shandanette Molnar, 01/22/13,

Could we instead change this sentence to something like this:“In the U.S. Federal procurement system, bid protests originated in the 1920s.(FN2) Critics oftentimes characterize the bid protest process as burdensome and overly complex, calling for a simplification of the process.(FN3)” If so, I have a source to substantiate that claim. Otherwise, I cannot find a source referencing bid protest criticisms dating to their inception. SJMWould rely on Kovacic article (Source 5)I attempted to find sources to substantiate the sentence as written by the author. I was unable to find anything criticizing the GAO’s role in bid protests prior to 1956 (aside from the GAO itself). Although this source is not particularly close in time to the first bid protests, perhaps it is “nearly” as old? No author was given for the Harvard Law Review article. NABGAO's role in bid protests is different than what that sentence is talking about. I think we should go with the first suggested sentence and have subsituted. KSBDean Gordon subsequently suggested adding the “author’s impression” language. I no longer believe that a FN is necessary and would remove the FN. NAB

Accounting Office (GAO) (“GAO”),5, to complaincomplaining that

agencies had improperly awarded contracts to their competitors.6

There was hesitation within the GAO about the appropriateness of

consideringwhether it was appropriate to consider complaints by

private firms about the federal procurement process.7

Ultimately, the GAO decided to consider the complaints as part of

itsthe Office’s responsibility to ensure that funds appropriated

by Congress arewere lawfully spent,— which is also known aswhat

is referred to as the OfficeGAO’s account settlement function.8

Then in 1925, a company wrote to the GAO alleging that

Panama Canal the officials of the Panama Canal had issued a

solicitation with had written specifications for a truck that

were “wired” to a particular brand name and that thereby unfairly

precluded the complaining firm from fair consideration for the

contract.9 The GAO requested the Canal’s views on the matter,

and, when the Canal authorities admitted that they had used the

specifications of one company’s truck in the solicitation,10

5 See id. at NA147; Daniel I. Gordon, Annals of Accountability: The First Published Bid Protest Decision, 39 PROCUREMENT LAW . , no. 2, Winter 2004, at 11.6 In the Beginning, supra note 2, at NA148.7 5 Comp. Gen. 712, 713.Id. at 157-58..8 Id. at 160-62.58.9 Comp. Gen. McCarl to the Gov., the Panama CanalAutocar Sales & Serv. Co., 5 Comp. Gen. 712, 713 (1926); In the Beginning, supra note 2, at 158.5 Comp. Gen. 712, A-11259 (Mar. 9, 1926)..10 See, e.g., William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 ADMIN. L. J. REV. AM. U. 461 , 470 (1995); In the Beginning, supra note 2, at NA163.

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after some internal hesitation, decided to consider the complaint

as part of the office’s responsibility to ensure that funds

appropriated by Congress were lawfully spent—what is referred to

as GAO’s account settlement function. the GAO issued the first

published bid protest decision, ruling that the challenged

solicitation was unlawfulultimately agreed with the protesting

firm.11

In the course of the ensuring decades, handling bid protests

became a routine function of the GAO’s Office of General

Counsel.12 Some protests involved potential offerors’ pre-award

challenges by potential offerors to solicitation terms,;13 while

many others the majority representedwere post-award challenges

where by firms that had competed for a contract contested the

award to another offeror, contesting the award to another

offeror.14

For many years, courts did not consider bid protests, suchso

that the GAO (and the contracting agencies themselves)

11 See, e.g., Letter to Sec’y of War, 16 Comp. Gen. 149, 150 (1936).See, e.g., New York Tel. Co. v. Sec’y of Army, 67 F. Supp. 18, 19 (D.D.C. 1986)12 See, e.g., Letter to Sec’y of Interior, 17 Comp. Gen. 770 (1938).KATE M. MANUEL & MOSCHE SCHWARTZ, CONG. RES. SEV., R 40228, GAO BID PROTESTS: AN OVERVIEW OF TIME FRAMES AND PROCEDURES 2-3 (June 30, 2011).13 Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 2007 WIS. L. REV. 1225, 1229 (2007).14 Scanwell Labs., Inc. v. ShafferUnited States, 424 F.2d 859, 876 (D.C. Cir. 1970) (holding that bid protests could be heard in U.S. district courts).

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Adam, 01/22/13,

KL – I revised the name of the Comp. Gen. decision, b/c that’s how the name looks like in the source on the portal. However, the call is up to you. AAB

represented the only place to file a protest.15 Then, for three

decades U.S. district courts had bid protest jurisdiction, —

beginning with the after the decision of the U.S. Court of

Appeals for the District of Columbia Circuit’s decision in

Scanwell Laboratories, Inc. v. Shaffer,16 U.S. district courts

had bid protest jurisdiction, untiland ending with the statutory

mandate of the Administrative Dispute Resolution Act of 1996 that

this jurisdiction “sunset”when that jurisdiction “sunset” in

2001.17

Meanwhile, Ffrom the enactment of the Competition in

Contracting Act of 1984 (CICA) in 198418 until its jurisdiction

was ended pursuant tothrough sSection 5101 of the Clinger Cohen

Act of 1996,19 Pub. L. No. 104-106, there was another

administrative forum with jurisdiction over bid protests that

pertainedrelated to information technology: some protests, those

related to information technology, and that was the General

15 The Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870,at 3874-1375, (amending 28 U.S.C. § 1491) (providinged for district courtthe District Court jurisdiction over bid protests to “sunset” on January 1, 2001).16 The Competition in Contracting Act (CICA), Pub. L. No. 98-369, 98 Stat. 1175, 1182 (1984)494, 714 (1984).17 The Clinger Cohen Act of 1996, Pub. L. No. 104-106, § 5101, 110 Stat. 186, 680 (1996).18 Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, section§ 12(d). [Note to student editors: Should we refer back to the citation in the earlier footnote?]19 See JOHN CIBINIC, JR. , RALPH C. NASH, JR., & CHRISTOPHER R. YUKINS , E E T A A L. , ET. AL , FORMATION OF GOVERNMENT CONTRACTS 1673 (2011).

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Adam, 01/22/13,

KL and ST – Statute actually uses word “sunset,” so I think quote marks should be maintained. AAB

Services Administration’s Board of Contract Appeals, the

(GSBCA).20 FinallyIn addition, a statutory change in 1996

resulted inmeant that the Court of Federal Claims,21 which had

only pre-award protest jurisdiction for many years, gainingwas

given post-award jurisdiction as well.22

ConsequentlyThe result is that, for more than a decade now,

the only places outside the contracting agency where disappointed

bidders have been able to file protests have beenare the GAO and

the Court of Federal Claims.23 From time to time there are

differences between the GAO and the Court of Federal Claims, with

20 Id. at 1674.21 See Erik A. Troff, The United States Agency-Level Bid Protest Mechanism: A Model for Bid Challenge Procedures in Developing Nations, 57 A.F. L. REV. 113, 115-16 (2005) (describing bid protest mechanisms required by major public procurement development efforts); see also, e.g., David P. Goodwin, et. al., International Procurement, 44 INT’L LAW 261, 262-64 (2010) (discussing local protest procedures in Canada).22 See Troff, supra note 25, at 115-16, 116 n.6 (noting the international emphasis placed on bid protest mechanisms). It should be noted that the term “protest” (or “bid protest”) is rarely used outside the United States; instead, what we would call protests are called ”challenges,” “domestic review procedures,” “remedies,” or simply ”complaints.” Id. at 115 n.5.23 See Free Trade Agreements, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE , (last visited Nov. 29, 2012) (listing all Untied States Free Trade Agreements in force); . Agreements signed after the 1990 agreement with Israel contain a provision calling for “domestic review of supplier challenges.” See id.; see also Timothy M. Cox, Should tThe United States Incorporate tThe Procurement Integrity Act Into Its Free Trade Agreements?: A Look At the Australian-United States Free Trade Agreement, 17 Sw. J. Int’L LAW . 101, 113 (2010) (noting that all free trade agreements with the United States require some type of bid protest mechanism).

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Recommend deleting this FN. The sentence is supported by the preceding discussion.If we do delete this FN, we will need to be sure to modify the following FN (id. will no longer work).I think it is fine to leave this FN. KSB

Adam, 01/22/13,

KL and ST – Also like this FN, think we should keep it. AAB


This FN strikes me as unnecessary and distracting. NABComment from Dean Gordon: In Footnote 21, do we need the pre-1992 law? If so, what does “generally” mean in that sentence? Can we delete it?The word “generally” is definitely not needed. I recommend deleting the FN altogether. Neither the 1992 law nor the 1982 law seem necessary to me. NABAgree. Deleted FN. KSB

Adam, 01/22/13,

ST and KL – NB makes a good point, but I feel the FN is a good addition here given the historical value it adds to Dean Gordon’s discussion of the history of bid protest jurisdiction. AAB

respect to both process and outcomes.24 The author views

occasional differences between the two fora as inevitable, and

that is particularly the case here, where, as here, one forum is

administrative and the other is judicial. In any event, having

two fora hearing bid protests may be healthy for the procurement

system. While the discussion below regarding the costs and

benefits of protests to the procurement system is focused on the

GAO, the analysis should apply, at least in broad terms, to the

Court of Federal Claims as well.

24 North American Free Trade Agreement art. 1017, Dec. 17, 1992, U.S.-Can.-Mex., 107 Stat. 2066, 32 I.L.M. 296 (1993) (entered into force Jan. 1, 1994).See Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47; http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/bereczky.aspx?view=d: “Article 1017 of the NAFTA calls for the promotion of “‘fair, open and impartial procurement procedures,’” whereby “‘each party shall adopt and maintain bid challenge procedures for procurement covered’” in accordance with a variety of principles, including that of “‘establish[ing] or designat[ing] a reviewing authority with no substantial interest in the outcome of procurements to receive bid challenges and make findings and recommendations concerning them.’” As a result, the Canadian government established the Canadian International Trade Tribunal (CITT). NEEDS CITE. The tribunal’s mandate is to receive complaints and to conduct the necessary investigation to see whether the procurement project challenged falls outside the respectable limits of the NAFTA procurement procedures and to provide for remedies where procedural breaches occur.” Szandra Bereczky, NAFTA Chapter 10: Enhancing Trust in the Canadian Business Community, FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA , Jan. 51, 2009, http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/bereczky.aspx?view=d:.NEEDS CITE.

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Adam, 01/22/13,

ST and KL – I’m fine w/ having no FNs here, as I agree w/ NB that it’s author opinion/conclusory. AAB


No FN. Author’s opinion. NAB





https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=100856&cite=32INTLLEGALMAT289&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_100856_296

III. Spread of the Protest Process Outside the U.S.

Before turning to that analysis, it is worth looking outside

the United States.S., because the protest process has been

receivingreceived substantial attention around the world in

recent years.25 More than ever in the past, a protest system has

come to be seen as a required part of a good public procurement

regimesystem.26 As evidence of this trendFor example, in every

free trade agreement that the U.S. has negotiated over the past

20 years, there has been a provision requiring our trading

partners to have a protest mechanismthe U.S. requires all

countries with which it enters into a free trade agreement to

incorporate a bid protest provision.27 In additionCanada, for

instance, the Canadian International Trade Tribunal was created

to satisfy the North American Free Trade Agreement’s (NAFTA)

requires requirement of NAFTA, the North America Free Trade

25 See Article XX of the existing GPA and Article XVIII of the 2011 revised version, which is to come into effect shortly. See Agreement on Government Procurement, Committee on Government Procurement, Adoption Of The Results Of The Negotiations Under Article XXIV: 7 Of The Agreement On Government Procurement, WT/GPA/113 (Apr. 2, 2012), available at http://www.ustr.gov/sites/default/files/GPA%20113%20Decision%20on%20the%20outcomes%20of%20the%20negotiations%20under%20Article%20XXIV%207.pdfhttp://www.ustr.gov/sites/default/files/GPA%20113%20Decision%20on%20the%20outcomes%20of%20the%20negotiations%20under%20Article%20XXIV%207.pdf. happening?].26 See Challenge Proceedings, Chapter VIII, UNCITRAL Model Law on Public Procurement (2011), available at . http://www.uncitral.org/pdf/english/texts/procurem/ml-procurement-2011/ML_Public_Procurement_A_66_17_E.pdf. 27 See Preamble, Council Directive 89/665/EEC (1989).

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Agreement, that each partner to havehasve a protest forum.28

Similarly, tThe World Trade Organization’s Agreement on

Government Procurement (GPA) likewise includes a provision

requiring that WTO members thatwhothat accede to itthe GPA to

have a protest forum to hearthat hears protests (called a

domestic review procedure).29 FinallyIn addition, there is a

protest provision in Chapter VIII of the model procurement law of

the United Nations Commission on International Trade Law

(UNCITRAL).30

Perhaps most interesting is the attention that bid protests

have received duringover the past 20 years in the European Union

(“E.U.”). Not mentioned in the EU’s Public Procurement

Directives, protests were first addressed by the European

Commission in what is known as the Remedies Directive.31

Initially issued in 1989,32 the Remedies Directive was revised in

2007.33 The Remedies Directive has had an enormous impact,

28 [Id.insert reference]29 See Directive 2007/66/EC of the European Parliament and of the Council (2007).[insert reference]30 See id. at Article 1, Scope and Availability of Review Procedures.31 See, e.g.,Case C-81/98, Alcatel Austria AG and Others, Siemens AG Österreich and Sag-Schrack Anlagentechnik AG v Bundesministerium für Wissenschaft und Verkehr, I-7708 (2009).32 Id.Case C-81/98, Alcatel Austria AG and Others, Siemens AG Österreich and Sag-Schrack Anlagentechnik AG v Bundesministerium für Wissenschaft und Verkehr, I-7708 (2009).33 See Article 2(a), Standstill period, Directive 2007/66/EC of the European Parliament and of the Council, (2007); Sue Arrowsmith, The Past and Future Evolution of Ec Procurement Law: From Framework to Common Code?, 35 Pub. Cont. L.J. 337 (2006)

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No FN. Substantiated by following text. NAB

Adam, 01/22/13,

KL and ST – I recommend simplifying this FN to just citing to the relevant NAFTA provision. AAB


Dean Gordon wanted this changed to “has.” I think it should be “have.” NAB

requiring all member states to have a protest forum that

considers protests.,34 and a good number of EU member states have

recently seen a significant increase in the number of protests

being filed (whether that is a positive or a negative development

is a separate question). Furthermore, Tthe Court of Justice of

the European Union has also issued decisions that have reshaped

the protest process in the E.U..35, in particular, through tOf

particular importance was the Alcatel decision36 that led to the

.http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:335:0031:0046:EN:PDF.34 See, e.g., THOMAS LIGHT ET AL., ANALYSIS OF GOVERNMENT OF ACCOUNTABILITY BID PROTESTS IN AIR FORCE SOURCE SELECTIONS OVER THE PAST TWO DECADES, RAND PROJECT AIR FORCE 12 (2012), available at http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR883.pdf. As explained in greater detail later in this article, the author believes that the RAND Corporation study’s estimate of annual procurements made by the Air Force represents a significant underestimation. See infra note 42 and accompanying text.35 See CIBINIC ET AL., supra note 23, at 1678 (discussing protestable task and delivery orders). 36 See 41 U.S.C. § 253j(e) (Supp. II 2009). The Fiscal Year (FY) 2008 National Defense Authorization Act (NDAA) amended the Federal Acquisition Streamlining Act (FASA) to grant GAO jurisdiction, for three years, to hear protests concerning task or delivery orders valued at more than $10 million. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 843, 122 Stat. 3, 237-239 (2008)(codified at 41 U.S.C. § 253j(e)); Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, 108 Stat. 3243, 3252-3253, 3264. The FY 2011 NDAA included a provision which extended to September 30, 2016, GAO’s jurisdiction to hear protests concerning the issuance of a task or delivery order under Title 10 of U.S. Code (which essentially covers defense agencies). Ike Skelton National Defense Authorization Act of 2011, Pub. L. No. 111-383, § 825, 124 Stat. 4137, 4270 (codified at 10 U.S.C. § 2304c). The FY 2012 NDAA did the same thing for agencies covered by Title 41 of the U.S. Code (which essentially covers civilian agencies). National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, §

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http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR883.pdf


http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:335:0031:0046:EN:PDF

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:335:0031:0046:EN:PDF

requirement (codified in Article 2a) of the 2007 revision to the

Remedies Directive) that there be a “standstill” period

(typically ten10 days) between the announcement of the apparent

winner of the competition for a contracta potential awardee and

the signing of the contractcontract signing, in order to allow a

window for filing protestspotential .37

Bid protest procedures have therefore received important

consideration from the international community. States-side,

however, the U.S. federal protest system has come under

increasing criticism regarding its ineffectiveness and

complexity.38 The following section addresses some of the

misconceptions upon which at lot of this criticism is based.

[IV.] Correcting Misperceptions A a bout Bid Protest Statistics

In the author’s experience, there exist a number of In

theAmongmisperceptions concerningabout the circle of people who

are interested in federal procurement, there are aexist a number

813, 125 Stat. 1298, 1491 (2011) (codified at 41 U.S.C. 4106(f)). 37 THOMAS LIGHT ET AL. , supra note 40, at 12, ANALYSIS OF GOVERNMENT OF ACCOUNTABILITY BID PROTESTS IN AIR FORCE SOURCE SELECTIO N S OVER THE PAST TWO DECADES, RAND PROJECT AIR FORCE 12 (2012), available at http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR883. pdf . It is not clear if RAND’s analysis took in to account task and delivery orders, but the reference to “contracts” suggests that it did not. See id.. JWT 38 Prime Award Spending Data: FY 2008, USASPENDING.GOV , Nov. 23, 2012, PRIME AWARD SPENDING DATA, FISCAL YEAR 2008, http://usaspending.gov/?q=explore&fromfiscal=yes&typeofview=detailsummary&fiscal_year=2008http://usaspending.gov/?q=explore&fromfiscal=yes&typeofview=detailsummary&fiscal_year=2008. (last visited Nov. 23, 2012). JWT

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Adam, 01/22/13,

KL and ST – added FN. AAB



of misperceptions about bid protest statistics that deserve

attention,should be addressed, since these mispercetionsy can

taint judgments about the benefits and costs of protests. In

particular, even people quite familiar with the federal

acquisition system often believe that protests are more common

than they really are, and they often believe, inaccurately, that

protesters primarilyfrequently use the protest process as just a

business tactic to obtainwin contracts work from the

Government.39

A. Protests Are Rare Events

The frequency or rarity of protests requiresneeds to be

judged in context in order for anythe judgment on the issue to be

sensible. In the author’s experience, If awhen a cContracting

oOfficer is asked whether, in the procurements she or he has

worked on over the prior 3few years, protests were frequent, an

affirmative answer is often provided; but if one asks how many

procurements the cContracting oOfficer has worked on during that

period, that number often dwarfs the number of protests. Put

another way, while the numerator (the absolute number of

protests) is important, the denominator (the total number of

procurements) is critical to a determination ofto determining

whether it is reasonable to say that protests can reasonably be

said to befrequently occurare frequent. In assessing the

39 See LIGHT ET AL., supra note 40, at 12.13




Same. NAB


No FN. Likely based on author’s personal experience. NAB



Adam, 01/23/13,

KL and ST – I think my changes above-the-line and below-the-line address the issue flagged by NB and KB. AAB


Add FN A: See, e.g., Nick Wakeman, Bid Protest Dilemma Continues, Washington Technology (Nov. 16, 2012), http://washingtontechnology.com/blogs/editors-notebook/2012/11/bid-protest-dilemma.aspx; Moshe Schwartz and Kate M. Manuel, GAO Bid Protests: Trends, Analysis, and Options for Congress, 1 (Feb. 2009) ("Bid protests filed with the [GAO] have received increased congressional scrutiny due to recent protests of high-profile awards reports and reports that the number of protests is increasing."). KAR

Owner, 01/22/13,

I did what I could on this, but I’m not entirely sure I captured a “primary source” of the personal views of “people quite familiar with the federal acquisition system.”. KARI think that the CRS Report Works, but I deleted the Wakeman blog. NABThe CRS report is not sufficient to substantiate the entire sentence. Adding the blog cite back in. KSB


No FN. General observation likely based on author’s experience. NABChanged the wording to make it clearly author’s opinion. KSB

frequency of bid protests in the federal procurement system,

there are difficulties with both the denominator (the number of

federal procurements that occur each year) and the numerator (the

number of protests filed each year). – respectively, the number

of federal procurements that occur each year, and the number of

protests filed each year.

Regarding the denominator, perhaps surprisingly, there are

not good statistics on the number of federal procurements that

occur each year.40 Any such count would need to include, not

only the number of contracts awarded, but also any protestable

task and delivery orders awarded that can be protested.41 The

latter category includes all orders placed under the General

Services Administration (GSA) Federal Supply Schedule (FSS) and

orders issued under multiple-awarded indefinite-delivery,

indefinite-quantity (ID/IQ) contracts, where the orders have a

value above $10 million.42 A recent RAND Corporation study of

Air Force procurements that were protested to the GAO indicated

that approximately 20,000 contracts with at least one transaction

value aboveover $25,000 were awarded by the Air Force in 2008,

40 This estimate is based on the author’s experience in federal procurement law.41 The author had regularly seen these 3” x 5” cards in the GAO’s storage rooms.42 See U.S. GOV’T ACCOUNTABILITY OFFICE, B-401197, REPORT TO CONGRESS ON BID PROTESTS INVOLVING DEFENSE PROCUREMENTS 5-6 n.8 (2009) [hereinafter BID PROTESTS INVOLVING DEFENSE PROCUREMENTS] (describing the discrepancy between the number of protests GAO reports as filed and the number of procurements that are actually protested).

14


Not sure that this is accurate. The RAND report indicates that there were at least 20,000 contracts “with at least [ONE TRANSACTION] amount greater than $25,000”Isn’t it possible that there were some contracts with multiple transaction that totaled over $25,000? NABNichole is right. Edited text to reflect this. KSB

Adam, 01/23/13,

KL – Added FN. AAB


No FN. Subjective statement regarding the quality of available data; author needs to cite to data and explain the deficiencies, according to the author's perspective. KARThis sentence is also substantiated by the following sentence and footnote. NAB

Adam, 01/23/13,



NO FN. Subjective statement regarding the quality of available data; author needs to cite to data and explain the deficiencies, according to the author's perspective. KAR

Adam, 01/23/13,

KL and ST – After conducting an independent review, I did not locate any other source stating this “denominator/numerator” concept re protests and procurements. Given the author’s expertise, I’m fine with having no FNs. here. AAB


No FN. Author’s opinion that is explained in subsequent text. NAB


Fix em dashes. NAB

representing approximately $63 billion.43 Since overall

procurement spending in 2008 was over $500 billion44 (eight times

the amount spent by the Air Force alone), that would suggest that

the overall number of contracts awarded was approximately

160,000.45 The author suspects that the number is low and that a

better estimate, including FSS orders and ID/IQ orders above $10

million, would probably substantially exceed 250,000.46 For the

purpose of this article’s analysis, of the analysis in this

paper, however, it will be assumed that the total number of

federal contracts and protestable orders awarded in a year is

200,000.

With respect to the numerator —(ther – the number of

protests filed), —there has been confusion due to , for reasons

that can be clarified here. One challenge has been a

methodological anomaly at the GAO that is worth explaining.

Since the days when protest filings were tracked on 3” x 5”

cards,47 the GAO has counted cases in a way used a methodology

that can cause people to believe that protest numbers are higher

43 Id.United States Government Accountability Office, B-401197, Report to Congress on Bid Protests Involving Defense Procurements 5, n. 8 (2009).See id. The way B numbers are assigned and counted and the resulting overstating of protest numbers appears to be unique to the GAO and thus would not affect statistics at the Court of Federal Claims. See id.44 Id.See id. at 5 n.8.45 See id.Id.46 See id. 47 See id.

15


We were unable to substantiate this portion of the sentence. NABIn response to our substantiation concerns, Dean Gordon suggested adding “(cards which the author has seen in GAO’s storage rooms).” I don’t think that the addition is necessary. It was more important that we were sure that this information was accurate than that we provide a source for readers. NABGiven the author and his bio at the top, I’m not sure it’s necessary to substantiate something like this. KSB

Adam, 01/23/13,

KL and ST – Added FN. As noted above, this disclaimer email may not be needed. To be safe, I included it and leave to your discretion re whether we should keep it or not. AAB


No FN. Introductory statement. NAB


No FN. Introductory statement. NAB


No FN. Stating assumption. NAB

Adam, 01/23/13,

KL and ST – Added FN. I leave to your discretion whether we should have this disclaimer FN, given Dean Gordon’s superior level of expertise on the topic of bid protests. AAB


No FN. Author opinion. NAB

Adam, 01/23/13,



No FN. Calculation based on information already provided. NAB

than they actually are.48 When a company files a protest

challenging the terms of a solicitation, the GAO assigns it a

docket number, referred to as a “B number,” becausesince it

begins with a “B” “B”— (for– for example, B-123456).49 If the

protester later learns new information that constitutes a new

ground of protest and files a supplemental protest of that same

solicitation’s terms, the GAO will docket that as B-123456.2.50

If another potential offeror also protests the solicitation’s

terms, the GAO will docket that other offeror’s its initial

protest as B-123456.3, and if that firm supplements its

supplemental protest (if filed), that will be docketed as B-

123456.4.51 However those pre-award protests are resolved, once

48 See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-251R, GAO’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2008 2 note n.1 (2008) [hereinafter GAO FY 2008 BID PROTEST REPORT] .49 Needs cite.50 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-251R , GAO ’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2008 2 , B-158766, 2 (Dec. 22, 2008) [hereinafter GAO FY 2008 BID PROTEST REPORT] . Id. at 2. TheGAO’s reported number of cases filed as reported in the GAO’s annual reports apparently also includes requests for reconsideration of a prior GAO decision as well as requests for reimbursement of costs., since either such request would be assigned the same B number as the related protest (in the example used in the text here, a request for reconsideration of the decision on the protests of the award would be docketed as B-123456.9 and a subsequent request by the two protesters that their protest costs be reimbursed would be docketed as B-123456.10 and B-123456.11. See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-13-162SP, GAO ’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2012 1 (2012) [hereinafter GAO FY 2012 BID PROTEST REPORT] .51 Cf. See U.S. Gov’t Accountability Office, B-401197, Report to Congress on BID PROTESTS INVOLVING DEFENSE PROCUREMENTS , supra note 41, at 7 (2009) This number is derived from adding 416 Nnon-DOD

16

the agency awards a contract, a losing competitor may file a

protest,, which the GAO will docket as B-123456.5; and, if there

is a supplemental protest once the protester sees the agency

report, that it will be docketed as B-123456.6.52 And finally,

if another losing competitor files a protest and then supplements

it, they those protests will be docketed as B-123456.7 and B-

123456.8, respectively.53 Overall, the GAO’s statistics will

indicate eight protests, even though only one procurement has

been protested.54 In the author’s experience, however, While

eeight protests of one procurement would be unusual, whereas

having two or three protests of one procurement would be more

routinetwo protests is routine, and three would not be out of the

ordinary, in the author’s experience.55

What thisat means is that, when the GAO reports the number

of protests filed in a year,, that reported at number

protests and 611 DOD protests. Additionally, the report explains, “For purposes of counting the number of protests filed, we eliminated from our count multiple iterations of the same “B” number. As a consequence, the number of protests in this report reflects the number of procurements challenged in a given fiscal year..” Id. at 5-6 n.8. B-401197 (supra note XX) at 7, fig. 1, and GAO’s GAO Bid Protest Annual Report to the Congress for Fiscal Year 2008, B-158766, Dec. 22, 2008.52 See id. at 7; GAO FY 2008 BID PROTEST REPORT, supra note 54, at 2.53 U.S. GOV’T ACCOUNTABILITY OFFICE , GAO-12-199SP, GAO’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2011 BID PROTEST STATISTICS FOR FISCAL YEARS 2007-2011 4 (2011) [ hereinafter GAO FY 2011 BID PROTEST REPORT] . 54 See id.; GAO FY 2008 BID PROTEST REPORT, supra note 54, at 2.55 See GAO FY 2011 BID PROTEST REPORT , supra note 59, at 4; GAO FY 2008 BID PROTEST REPORT, supra note 54, at 2.

17

Adam, 01/23/13,

KL – consistent w/ what NB and KB have said, I would recommend deleting FN. AAB


We were unable to find a source to substantiate this. I suspect that it is based on Dean Gordon’s personal experience. NAB.Comment from Dean Gordon: I don’t think a cite is needed – the next paragraph shows that there are, on average, 1.6 docket numbers per procurement protested. If a reference to three being not-extraordinary is needed – we could either add “in the author’s experience” or just delete, and end the sentence with “. . . Having two protests of one procurement is a routine occurrence.”I recommend deleting the FN and allowing the sentence to be substantiated by the subsequent text. NABAdded "in the author's experience." KSB


No FN. Calculation based on info already provided. NABDisagree. Found source. KSB

Samantha, 01/22/13,

Same comment as above. SLPSame. NABThat source was not on point. Changed source. KSB

Samantha, 01/22/13,

I can’t find a source when he draws it out this far. I’ll keep looking, but every source stops after the first few iterations of the B-number. SLPI think that with a “See” cite the Report on Bid Protests Involving Defense Procurements sources supports, through implication, this assertion. NABChanged source. That source was not on point. KSB

substantially overstates the number of procurements actually

protested. For Fiscal Year (FY) 2008, for example, while the GAO

reported 1,652 cases were filed,56, elsewhere the GAO reported

that 1,027 procurements were protested in that period.57 In

other words, the GAO indicated that, on average, there wereare

approximately 1.6 docket numbers assigned (“cases filed”) for

eachper protested procurement.58 Assuming that this ratio is

stable over time, it would mean that the 2,353 “cases filed” in

FY 201159 represented approximately 1,470 protested procurements.

While the number of federal procurements was probably not the

56 LIGHT ET AL. , supra note 39, at 1.Frank Camm et al., RAND Corporation, Government Accountability Office Bid Protests in Air Force Source Selections: Evidence and Options at x (2012). 57 Id.F. Camm, M.E. Chenoweth, T. Light, M.A. Lorell, J.C. Graser, P. Lewis and R. Rudavsky, Government Accountability Office Bid Protests in Air Force Source Selections, in American Bar Association Section of Public Contract Law, “The Changing Budgetary Environment: Legal and Fiscal Challenges in Federal Procurement,” from the ABA Annual Meetings in Chicago (August 2012), at 3. [It appears that the more appropriate reference should be to the RAND study itself.] THOMAS LIGHT, ET AL., ANALYSIS OF GOVERNMENT ACCOUNTABILITY OFFICE BID PROTESTS IN AIR FORCE SOURCE SELECTIONS OVER THE PAST TWO DECADES, RAND PROJECT AIR FORCE (2012), http://www.rand.org/content/dam/rand/pubs/technical_reports/2012/RAND_TR883.pdf at 1. JWT58 See id.59 See Thus, the Court received 79 protests in FY 2008. Daniel R. Forman et al., Bid Protests: Trends and Development, Crowell & Moring LLP 182-83 (2011), http://www.crowell.com/files/2011-Bid-Protests-Trends-and-Developments.pdf (noting that 79 protests were filed at the Court of Federal Claims in FY 2008); sSee also Michael J. Schaengold et al., Choice of Forum for Federal Government Contract Bid Protests, 18 FED. CIR. B.J. 243, 255-59 (2009) (noting the number of protests filed at GAO and the Court of Federal Claims in each year from 2001 to 2007).

18


No FN. Calculation based on info already given. NAB


No FN. Calculation based on info already given. NAB

Adam, 01/23/13,



No FN. Author’s conclusion based on prior text. NAB

same in FY 2008 and FY 2011, if we nevertheless assume, for the

sake of simplicity and since this is only a rough estimate, that

there were 200,000 procurements in each of those two2two years,

that would suggest that 0.51% percent of procurements were

protested in FY 2008 and 0.74%& percent were protested in FY

2011.60 In other words, between approximately 99.3% and 99.5%

percent of procurements were not protested.61

This calculation has been confirmed throughis supported by

the recent RAND Corporation study mentioned above.62 In that

study, researchers at the RAND Corporation found that, in the Air

Force, “[t]he number of [GAO] protests as a percentage of total

contract awards has fallen fell fairly steadily from about 1.7

percent in FY 1995 to 0.5 percent in FY 2008.”63 That is to say,

as of 2008, 99.5 percent of Air Force procurements went forward

without being protested to the GAO.64 Even if GAO protests forof

some other agencies’ procurements were twice as common as for the

60 See Schaengold, supra note 53, at 254-55; Troff, supra note 25, at 146 n.170.61 See LIGHT ET AL., supra note 39, at 1.62 See Memorandum from Daniel I. Gordon, Adm’r for Fed. Procurement Policy, Office of Fed. Procurement Policy, to Chief Acquisition Officers, Senior Procurement Execs., & Chief Info. Officers 7 (Feb. 2, 2011) [hereinafter Myth-Busting], available at http://www.whitehouse.gov/sties/default/files/omb/procurement/memo/Myth-Busting.pdf. 63 Id.64 See, e.g., GAO FY 2011 BID PROTEST REPORT , supra note 50, at 4.U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-12-199SP, BID PROTEST STATISTICS FOR FISCAL YEARS 2007-2 01 1 4 (201 1).

19


No FN. Calculation based on info already provided. NAB

Adam, 01/23/13,


Adam, 01/23/13,






Adam, 01/23/13,


Air Force (and there is no reason to assume that that is the

case), it would still be true that 99% percent of their these

other agencies’ procurements went forward without being protested

to GAO.

While the RAND Corporation study refers to GAO protests,

including the Court of Federal Claims would not alter the

picture, since the Ccourt receives fewer than one-tenth the

number of protests each year that GAO receives.65 And while

protesters can file protests within the Air Force, and

notwithstanding that statistics on the number of those “agency-

level protests” are not available,66 there is no reason to

believe that they would increase the total percentage of

protested Air Force procurements much above 0.5 percent.67

It is, of course, true that very high-dollar procurements

are much more likely to be protested: —the higher the dollar

65 Compare GAO FY 2008 BID PROTEST REPORT , supra note 48,50 at 24, with G A O FY 2011 BID PROTEST REPOR T , ; supra note 5049, at 4. It may be worth keeping in mind that the number of cases filed at GAO was higher in the 1990s. For example, GAO reported 2,529 cases in FY 1995 and 2,286 in FY 1996. See U.S. GOV’T ACCOUNTABILITY OF FICE, B-15 8766, GAO’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEA R 19 95 1 ( 1996); U.S. GOV’T ACCOUNTABILITY O FFICE, B-15 8766, GAO’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEA R 19 96 1 ( 1997); see also B ID PROTESTS INVOLVING DEFENSE PROCUREM ENTS , supra note 41, at 7.66 See BID PROTESTS INVOLVING DEFENSE PROCUREMENTS, supra note 48, at 5-6 n.8.67 Again, these figures are based on what in the author’s experience has been more routine, namely two or three protests of any one procurement.

20

Adam, 01/23/13,



No FN. Author’s opinion. NAB.

Michael F Mason, 01/22/13,

Citation?DIG: I added a cite from Crowell & Moring. Note that the Court’s website does not provide the cumulative statistics.I was also uncertain of how to cite the Crowell & Moring document. Also, the Fed. Cir. B.J. article indicates that a different number of protests were filed at COFC in 2008 than the Crowell & Moring document does. NABI deleted Crowell & and Moring doc. It was just a powerpoint. Left cite to Fed. Cir. B.J. KSB

Adam, 01/23/13,

ST and KL – I would recommend deleting this sentence entirely. It does not add much, and it seems to say too much based on assumption. AAB




No FN. Author’s opinion and stated as an assumption. NAB

value, the greater the likelihood of a protest.68 For a company

that loses the competition for a $100 million contract, with all

the bid and proposal costs that competing entails, the additional

cost of filing a protest may seem minimal, so that filing a

protest can be very tempting. That does not change the overall

picture, however, that bid protests are rare., however,

especially since very high-dollar procurements are themselves few

in number69: protests are rare.

What about the mantra we often hear about increases in

protest numbers? It is true that the GAO has reported a

substantial increase in the number of cases filed over the past

few years,70 but even if the numbers doubled, from half a percent

0.5% percent of procurements to a full one percent 1%percent, it

would still mean that something like 99 percent percent% of

procurements are not protested. In terms of absolute numbers,

the GAO has reported that the number of casesprotests rose from

1,327 in FY 2006 to 2,353 in FY 2011, an increase of more than 70

68 Source: usaspending.gov. Compare Prime Award Spending Data: FY 2006, USASPENDING.GOV , Nov. 23, 2012, PRIME AWARD SPENDING DATA, FISCAL YEAR 2006, http://usaspending.gov/?q=explore&fromfiscal=yes&typeofview=detailsummary&fiscal_year=2006, with Prime Award Spending Data: FY 2011, USASPENDING. gov, Nov. 23, 2012, PRIME AWARD SPENDING DATA, FISCAL YEAR 2011, http://usaspending.gov/?q=explore&fromfiscal=yes&typeofview=detailsummary&fiscal_year=2011. (last visited, Nov. 23, 2012). JWT 69 See id.70 U.S. GOV’T ACCOUNTABILITY OFFICE, REPORT TO CONGRESS ON BID PROTESTS INVOLVING DEFENSE PROCUREMENTS , supra note 41, at 10 (20 0 9).

21


No FN. Repeating prior conclusion. NAB


No FN. Conclusion based on info already given. NAB


I would make this a separate sentence for greater impact. NAB

Adam, 01/23/13,

KL – Recommend deleting this FN.


No FN. Logical conclusion. NAB

percent percent%.71 Adjusted to eliminate the overcounting

explained above,72 that would represent an increase from

approximately 830 to approximately 1,470 protested procurements

(representing the same percentage increase).73 During that same

period, however, federal procurement spending has increased from

$432 billion in FY 2006 to $537 billion in FY 2011.74 Put

another way, in FY 2006, there were approximately 1.92 protests

for each billion in federal procurement spending, while in FY

2011, there were 2.74 protests per billion.75 Those figures are

similar to the ones that the GAO provided in a congressional

report in 2009, when it stated that the number of protested

procurements per billion dollars in Department of Defense

contract spending ranged from 1.4 to 1.9 during the period FY

2004 to FY 2008.76 While the FY 2011 figure reflects an

71 See id.72 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-12-520SP, GAO BID PROTEST OVERVIEW [ hereinafter GAO BID PROTEST OVERVIEW] 2 (2011). 73 See GAO BID PROTEST OVERVIEW, supra note 79, at 2.ID.74 U.S. Gov’t Accountability Office, B-401197, Report to Congress on BID PROTESTS INVOLVING DEFENSE PROCUREMENTS , supra note 41, at 5 n.8 (2009). This presumably derives from protesters’ filing more supplemental protests in sustained protests, for whatever reason. 75 GAO BID PROTEST OVERVIEW, supra note 79, at 2. GAO FY 2011 BID PROTEST REPORT, supra note 50, at 4. GAO-12-199SP at 4.76 A note on the methodology used: A Westlaw search for GAO decisions issued with the terms “Matter of” and “protest” between October 1, 2009, and September 30, 2010, produced 3010 results. Sixteen of those were decisions on requests for reconsideration or on cost claims, leaving 294 protest decisions. Twelve of those were published dismissals of protests, leaving 282 decisions sustaining or denying protests. Finally, only 45 of these decisions resulted in a sustainment of the underlying protest or protests at issue, which accounted for the overall 82

22


In the FN, the author indicates that 8 protests were sustained in one 2.5 page opinion. The “2.5 page” figures is correct based on the format of the decision as it was initially released by the GAO (see Source 60A). The CCH version of the Comp. Gen. source (see Source 60) is only 1.5 pages long. I think it is ok to rely on the format of the original decision released by the GAO (Source 60A). NAB

Adam, 01/23/13,




Adam, 01/23/13,

KL – Added FNs. AAB



increase, the number of protests for each billion in federal

procurement spending is still extremely low: fewer than three

protests for each billion dollars that the gGovernment spends on

contracts.77

B. It is Rare for a Protester to Win a Protest , and Even Rarer for a Winning Protester to go on to Obtain the Contract at Issue in the Protest.

Here again, the GAO’s methodology risks misleading

observers. The GAO reports a “sustain” rate that has ranged

(that is, the rate at which the GAO rules in favor of the

protester and sustains the protest) that has ranged, over the

past 5 yearsbetween 2007 and 2011, from 16% to 27%% percent.78

That sounds like protesters do fairly well, but. For better or

for worse, the full picture is not so favorable to protesters.

sustained protests reported by the GAO in its bid protest overview report of 2011. See id. 77 See id.78 The 45 figure slightly overstates the number of procurements that were actually successfully protested. In one instance, the GAO issued two decisions on the same day sustaining two different companies’ protests of the same contract. See McCarthy/Hunt, JV, 25 Comp. Gen. 113,081 (2010); B.L. Harbert-Brasfield & Gorrie, JV, 25 Comp. Gen. 113,078 (2010). In another procurement, the GAO sustained a protest in March 2010, and then after the agency took corrective action, the GAO sustained another protest of the same procurement. See Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture, 25 Comp. 113,087 (2010) (initial decision issued in March 2010); Shaw-Parsons Infrastructure Recovery Assistance, Joint Venture, 25 Comp. Gen. 113,222 (2010) (decision issued in September 2010 following agency corrective action). Consequently then, the true number of successfully protested procurements could more accurately be said to be 43, but for the sake of simplicity, this article uses the 45 figure calculated above.

23


No FN. Author’s opinion and substantiated by following text. NAB







First, the sustain rate has been dropping nearly consistently

over the past 5 years, falling from 27 percent% in FY 2007 to 16%

percent in FY 2011.79 Second, the sustain rate is calculated

only among the cases for which the GAO issues a merits decision

on the merits, as the GAO’s explains in its annual reports

demonstrate.80 That means that, in FY 2010, for example, the GAO

did not sustain 19% percent of 2,299 cases; rather, – it

sustained 19% percent of 441 merit decisions on the merits (using

the 441 figure being based on thefrom GAO’s protest

overviewannual report of 2011).81 Third, that percentage is

79 See Shaw-Parsons Infrastructure Recovery Consultants, LLC; Vanguard Recovery Assistance, Joint Venture, 25 Comp. 113,087 (2010) (initial decision issued in March 2010); Shaw-Parsons Infrastructure Recovery Assistance, Joint Venture, 25 Comp. Gen. 113,222 (2010) (decision issued in September 2010 following agency corrective action).80 The GAO does not track information on which company ultimately receives a contract after the GAO has sustained a protest. The author, working with student research assistants at the George Washington University Law School, has been endeavoringendeavored to obtain information for the post-protest outcome of each of the 4553 procurements in which the GAO sustained in FY 2010 protests, and the results to date are set out in the text here. The effort to track down every case continues through Freedom of Information Act requests to the respective agencies.81 Biblia, Inc., 25 Comp. Gen. 133,217 (2010) (protested work completed prior to issuance of GAO decision); RBC Bearings Inc., 24 Comp. Gen. 112,948 (2009) (agency had overridden the stay and made award notwithstanding the protest); Bruce Bancroft—Agency Tender Official; Sam Rodriquez—Designated Emp. Agent, B-400404.7 et al., 2010 CPD ¶ 9 (Comp. Gen. Nov. 17, 2009); Frank A. Bloomer—Agency Tender Official, B-401482.2 et al., 2009 CPD ¶ 203 (Comp. Gen. Oct. 19, 2009). Note, though, that the last two of theose four cases involved protests of public-private competitions, where the federal employees’ representative won the protest and may have been satisfied that no further competition was to be held.

24

Adam, 01/24/13,

KL and ST – I see what NB’s driving at, and I agree. AAB

Matt Maurer, 01/22/13,

This information is substantiated by information in the statistical table, but is not exactly explained.I think the minor change to the language remedies the problem described above. NAB

distorted by the methodology of counting multiple B numbers

separately, because protests that are sustained typically have

more B numbers than protests that are denied, in the author’s

experience.82 For example,Thus, infor FY 2010, the GAO reported

441 merit decisions on the merits, of which 82 were reported as

sustained protests.83 But aA count of the actual decisions

82 See U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-211SP , GAO’S BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2010 1 (2010); see also Rice Servs., Inc., 25 Comp. Gen. 113,225 (2010); DGR Assocs., Inc., 25 Comp. Gen. 113,118 (2010). GAO’s Bid Protest Annual Report to the Congress for Fiscal Year 2012 identified 18 casesprotests where the agency had declined to follow GAO’s recommendation. GAO FY 2012 BID PROTEST REPORT , supra note 48, at 1.83 See (1) Analysis Grp., LLC, B-401726 et al., 2009 CPD ¶ 237 (Comp. Gen. Nov. 13, 2009); Analysis Grp., LLC, 26 Comp. Gen. 113,472 (2011) (denying protest of agency’s implementation of GAO’s recommendation in the earlier, sustained protest, where the agency’s implementation led it to confirm award to the original winner); (2) Port of Bellingham, B-401837, 2009 CPD ¶ 245 (Comp. Gen. Dec. 2, 2009); http://www.gpo.gov/fedsys/pkg/CREC-2011-02-18/pdf/CREC-2011-02-18-pt1-PgE305-2.pdf; Press Release, Port of Newport, Port Commission Briefed on Construction Progress for International Terminal Renovation and NOAA MOC-P Projects (Sept. 29, 2010); (3) Navistar Def., LLC; BAE Sys., Tactical Vehicle Sys. LP, 25 Comp. Gen. 112,995 (2009); FMTV 2010-2015: Pyrrhic Victories? Oshkosh Wins the Re-Compete, DEFENSE INDUSTRY DAILY, Apr. 16, 2012, http://www.defenseindustrydaily.com/FMTV-2010-2015-Oshkosh-Wins-The-Re-Compete-05744#US-Army-vehicles; (4) Velos, Inc., 25 Comp. Gen. 113,042 (2009); Velos, Inc., B-400500.11, (Comp. Gen. May 26, 2011) (unpublished) (copy with author); (5) Coastal Env’ts, Inc., 25 Comp. Gen. 113,005 (2009); Letter from Linda M. Fredendall, Contracting Officer, Dep’t of the Army, to Victor Palma, Ecological Communications Corporation (Feb. 15, 2010) (on file with author) (reaffirming award to original awardee); (6) C&B Construction, Inc., B-401988.2, 2010 CPD ¶ 1 (Comp. Gen. Jan. 6, 2010); Letter from Cynthia B. Armour, Contracting Officer, U.S. Dep’t of Agric., to Mike Herrick & Justin Isle, Aquatic Contracting (May 25, 2010) (on file with author) (awardee’s task order terminated, with work expected to be added to a future task order); (7) McKissack+Delcan JV II, 25

25

Adam, 01/24/13,

ST and KL – I did an independent search and likewise could not find a substantiating source. Because I want to refrain from having too much of the article based solely on author experience, I think we would be better served by just deleting this. AAB


We were unable to substantiate this portion of the sentence. Similarly, we were unable to substantiate the sentence in the FN. However, I suspect that we can safely defer to Dean Gordon’s expertise here (this is particularly true given that the conclusion is likely based on the same research that Dean Gordon did to reach the other conclusions in this section related to the 2010 protests). NABAdded “in the author’s experience” because there’s no source with which to substantiate this. KSB

http://www.gpo.gov/fedsys/pkg/CREC-2011-02-18/pdf/CREC-2011-02-18-pt1-PgE305-2.pdf

http://www.gpo.gov/fedsys/pkg/CREC-2011-02-18/pdf/CREC-2011-02-18-pt1-PgE305-2.pdf

(counting each decision as one, even if it resolves two or more B

numbers) revealsshows that there were actually 28277 (not 441)

decisions on the merits, rather than 441, (resolving the 441

protests GAO reported), of and that of these onlywhich 45

decisions sustained the 82 protests that the GAO reported as

Comp. Gen. 113,023 (2010); Letter from Carolyn A. Horne, Contracting Officer, Fed. Transit Admin., to Brian Stearman, McKissack & Delcan Joint Venture II (June 4, 2010) (on file with author) (exclusion of protester’s proposal confirmed); (8) Gen. Dynamics One Source, LLC; Unisys Corp., 25 Comp. Gen. 113,058 (2010); Unisys Corp., 25 Comp. Gen. 113,181 (2010) (denying protest after agency implemented GAO’s recommendation, but still made award to the original winner); (9) Cahaba Safeguard Adm’rs, LLC, 25 Comp. Gen. 113,046 (2010); C2C Solutions, Inc., 25 Comp. Gen. 113,048 (2010); C2C Solutions, Inc.; Trust Solutions, LLC, 25 Comp. Gen. 113,150 (2010) (denying protest of the way agency implemented GAO’s recommended corrective action in sustained protests, where the effect of the agency’s method apparently allowed the original awardee to keep the contract); (10) McCarthy/Hunt, JV, 25 Comp. Gen. 113,081 (2010); B.L. Harbert-Brasfield & Gorrie, JV, 25 Comp. Gen. 113,078 (2010); Turner Constr. Co. v. United States, 94 Fed. Cl. 561, 586 (2010), aff’d 645 F.3d 1377 (Fed. Cir. 2011) (reinstating award to the original awardee); (11) Med. Dev. Int’l, Inc., 26 Comp. Gen. 113,527 (2010); Comprehensive Medical Services – FCC Terre Haute, FEDBIZOPPS, June 8, 2011, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=7f95e6ef952104fd783510846ce50d17 (corrective action results in award to original awardee); (12) J2A 2 JV, LLC, 25 Comp. Gen. 113,115 (2010); Y-Sarasota National Cemetery Phase 1B Development Sarasota, Florida, FEDBIZOPPS , Dec. 23, 2010, https://www.gbo.gov/index?s=opportunity&mode=form&id=e20540f4bc3d9b679cc5bad7380d9d67&tab=core&_cview=1 (indicating that the agency apparently issued a new solicitation and awarded contracts to two companies, neither the protester nor the awardee); (13) Contrack Int’l, Inc., 25 Comp. Gen. 113,141 (2010); Memorandum from Dir., Joint Eng’r Directorate, United States Forces-Afghanistan, to the United States Forces Army Cent. (USARCENT), Kuwait G7 (Oct. 7, 2012) (on file with author) (solicitation cancelled); (14) JER 370 Third St., LLC, 25 Comp. Gen. 113,131 (2010); U.S. GEN. SERVS. ADMIN.,

26

having been sustained (not 82) were sustained the 82 protests

that GAO reported as having been sustained.84 That represents a

16% percent sustain rate, (notrather than the 19% rate percent

that the GAO reported).85

U.S. GOV’T LEASE FOR REAL PROPERTY, LEASE NO. GS-09B-GS-09B-02312 (June 1, 2011) (on file with author) (contract awarded to different offeror); (15) Wackenhut Servs., Inc., 25 Comp. Gen. 113,211 (2010); Armed Guard Service – DEA HQ and Labs VA and MD, FEDBIZOPPS, Apr. 28, 2011, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=b238d4ac2f13cecf300586b571e630e7&_cview=0 (corrective action results in award to original awardee); (16) MPRI, Division of L-3 Servs., Inc., 26 Comp. Gen. 113,422 (2010); Contract Actions Matching “w91crb09r0009, FPDS.GOV, https://www.fpds.gov/dbsight/search.do?indexName=awardfull&templateName=1.4.4&s=FPDSNG.COM&q=w91crb09r0009 (last visited Jan. 12, 2012) (award remained with original awardee); (17) Sys. Eng’g Int’l, Inc, 25 Comp. Gen. 113,169 (2010); Contract No. EP10HO1229, Modification No. 0003, U.S. Envtl. Protection Agency (Nov. 2, 2011) (on file with author); (18) DRS ICAS, LLC, B-401852.4 et al., 2010 CPD ¶ 261 (Comp. Gen. Sept. 8, 2010); TASK ORDER; (19) Info. Ventures, Inc., 25 Comp. Gen. 113,229 (2010); Mission Support Services for Preparation of Toxicological Profiles, FEDBIZOPPS , Nov. 19, 2010, https://www.fbo.gov/?s=opportunity& mode=form&id=a3e74cdbe8ae50d896268cb7559b0f65&tab=corre&_cview=1 (solicitation cancelled Nov. 19, 2010).84 See (1) AINS, Inc., 25 Comp. Gen. 133,049 (2010) (sustaining protested award of a single blanket purchase agreement to a firm other than the protester); AINS, Inc., 27 Comp. Gen. 113,763 (2012), at 1 (stating that both AINS and the other firm have blanket purchase agreements for what appear to be the services at issue in the 2010 protest); (2) Humana Military Healthcare Servs., B-401652.2 et al., 2009 CPD ¶ 219 (Comp. Gen. Oct. 28, 2009) (sustaining protest of award to another firm); UnitedHealth Military & Veterans Servs., LLC, 27 Comp. Gen. 113,672 (2011) (denying protest of another firm challenging award to Humana, the earlier protester); (3) Health Net Fed. Servs., LLC, B-401652.3 et al., 2009 CPD ¶ 220 (Comp. Gen. Nov. 4, 2009); TRICARE Third Generation Managed Care Support Services for the North Region,

27


I replicated this search and checked the results. KSB

https://www.fpds.gov/dbsight/search.do?indexName=awardfull&templateName=1.4.4&s=FPDSNG.COM&q=w91crb09r0009



Thus far, this analysis means that, among the hundreds of

thousands of federal procurements that occurred in FY 2010, there

were only 45 for whichwhere the GAO sustained bid protests. That

slightly overstates the number of procurements that were

successfully protested since in one instance GAO issued two

FEDBIZOPPS , May 18, 2010, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id-2306443561cd2064ef5f946a03fb1b55 (award to protester); (4) Ewing Constr. Co., 25 Comp. Gen. 113,123 (2010); Contract No. N69450-10-C-0789, NAVFAC Se. (Aug. 10, 2010) (on file with author); (5) AMEC Earth & Envtl., Inc., B-401961 et al., 25 Comp. Gen. 113,174 (2009); Nat’l Multiple Award Constr. Contract Contact Information, U.S. Coast Guard (on file with author) (protester awarded one of multiple-award contracts); (6) Milani Constr., LLC, 25 Comp. Gen. 113,105 (2009); Rehabilitate Anacostia Park, national Capital Parks East, FEDBIZOPPS, Apr. 5, 2010, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=1a5812911b516e2840156e2907c715c5&_cview=0. 85 See (1) AINS, Inc., 25 Comp. Gen. 133,049 (2010) (sustaining protested award of a single blanket purchase agreement to a firm other than the protester); AINS, Inc., 27 Comp. Gen. 113,763 (2012), at 1 (stating that both AINS and the other firm have blanket purchase agreements for what appear to be the services at issue in the 2010 protest); (2) Humana Military Healthcare Servs., B-401652.2 et al., 2009 CPD ¶ 219 (Comp. Gen. Oct. 28, 2009) (sustaining protest of award to another firm); UnitedHealth Military & Veterans Servs., LLC, 27 Comp. Gen. 113,672 (2011) (denying protest of another firm challenging award to Humana, the earlier protester); (3) Health Net Fed. Servs., LLC, B-401652.3 et al., 2009 CPD ¶ 220 (Comp. Gen. Nov. 4, 2009); TRICARE Third Generation Managed Care Support Services for the North Region, FEDBIZOPPS , May 18, 2010, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id-2306443561cd2064ef5f946a03fb1b55 (award to protester); (4) Ewing Constr. Co., 25 Comp. Gen. 113,123 (2010); Contract No. N69450-10-C-0789, NAVFAC Se. (Aug. 10, 2010) (on file with author); (5) AMEC Earth & Envtl., Inc., B-401961 et al., 25 Comp. Gen. 113,174 (2009); Nat’l Multiple Award Constr. Contract Contact Information, U.S. Coast Guard (on file with author) (protester awarded one of multiple-award contracts); (6) Milani Constr.,

28

decisions on the same day sustaining two different companies’

protests of the same contract.86 In another procurement, GAO

sustained a protest in March 2010, and then, after the agency

took corrective action, GAO sustained another protest of the same

procurement.87 In sum, GAO sustained protests in only 43

procurements in FY 2010. The next stage, though, offers even

worse news for protesters, and it is surprising how little is

reported about it. What happened in those 4535 procurements,

after the GAO sustained the protests? Did the protester that was

successful in the GAO litigation succeed in obtaining the

contract? The answer: Rrarely. The FY 2010 numbers have been

selected here for further study, because enough time should have

passed for final actions in the underlying procurements to be

available. That said, discovering the final action on a contract

LLC, 25 Comp. Gen. 113,105 (2009); Rehabilitate Anacostia Park, national Capital Parks East, FEDBIZOPPS, Apr. 5, 2010, https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=1a5812911b516e2840156e2907c715c5&_cview=0. In the additional case noted, the protester had challenged the agency’s refusal to amend the solicitation to use a small business size standard called for by the Small Business Administration’s Office of Hearings and Appeals; in sustaining the protest, the GAO recommended that the agency amend the solicitation to conform to that size standard. Eagle Home Med. Corp., 25 Comp. Gen. 113,086 (2010). Based on information the author has obtained through a Freedom of Information Act request, Tthe agency cancelled the solicitation and indicated that it would resolicit using the called-for size standard. [author has substantiating info in form of FOIA request response].86 See GAO FY 2012 BID PROTEST REPORT , supra note 48, at 5.87 Id.GAO FY 2012 BID PROTEST REPORT , supra note 48, at fifth unnumbered page.GAO-12-199SP at 4.

29





Adam, 01/24/13,

KL and ST – Recommend just plugging this into FN 86 (and deleting FN 87) and sticking w/ the 45 number – this section has already gone on long enough, and there’s no need to make the above-the-line reader more confused than he or she probably already is at this point. AAB


Note to Self: look for another case while doing the 310 search. KSB

can be challenging, because information on what ultimately

happened inafter each one of the sustained protests is not

readily available,. but eEnough is known, however, to give a

fairly clear picture of protesters often winning at the GAO but

nonetheless not receiving the contested contracts.88 In

four4four of the 4553 cases, the GAO did not recommend any

corrective action in the protested procurement, either because

the contract had already been performed or for other reasons.89

In an additional three cases, the GAO did recommend corrective

action in the procurement, but the agency explicitly declined to

follow the GAO’s recommendation.90 In another case, the agency

cancelled the solicitation entirely (for reasons, and with

impact, unclear). In 1916 additional cases (more than one third

of all the protests sustained nearly half of the procurements in

which GAO sustained a protest in FY 2010) , the GAO recommended

corrective action and, the agency followed the GAO’s

recommendation, but the agency then confirmed award to the same

company as before (or took some other action thatbut did not

award to the protester, such as awardinged to a third company,

neither the earlier awardee nor the protester, or cancelling the

88 Id. at 5fifth unnumbered page n.4.U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-13-162 SP, BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2012, at 5 (2012).89 Id.90 Cf. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-13-2SP, PERFORMANCE AND ACCOUNTABILITY REPORT FISCAL YEAR 2012 , at 46 (2012).

30

requirement entirely).91 In only six four cases identified to

date did the protester ultimately obtain the contested

contract,92 andalthough in one additional case, the agency did

commit to resoliciting using the size standard sought by the

protester..93 While the ultimate outcome has yet to bebeen

determined in the remaining 1117 procurements, this much is

clear: winning a protest is far from ensuring that a protester

will win the contract that it seeksis seeking.

Experienced practitioners may point out that the GAO reports

a high “effectiveness rate” that would suggest that the picture

is far better than this for protesters.94 That “effectiveness

rate,” which was reported as 42% percent for FYs 2010, 2011, and

2012,95 combines the sustained protests described above as well

as cases where agencies took voluntary “corrective action,”

91 Competition in Contracting Act (CICA), 31 U.S.C. § 3553(c), 3553(d) (2006).92 Id.Competition in Contracting Act (CICA), 31 U.S.C. § 3553(c), 3553(d). (2006).93 Id. § 3554(a)(1).GAO April 9, 2009 report at 494 See PUBLIC PROCUREMENT: AN OVERVIEW OF REGULATION IN 40 JURISDICTIONS WORLDWIDE (HANS-JOACHIM PRIE ẞ, ED. 2012 ) . As examples, in France, where contracts may not be awarded until the conclusion of a “standstill” provision, an administrative judge has only 20 days from the conclusion of the standstill period to decide, id. at 106, Ghana’s administrative authority is given 21 days to decide complaints, id. at 123, Macedonia’s Appeals Commission must decide cases within 15 days of receiving documentation, id. at 175, Portugal’s administrative review takes about 3 weeks, id. at 209, and Ukraine’s administrative review must be completed within 30 working days of receipt of a complaint, id. at 247.Need to add cite to at least one foreign system and the length of its stay.95 See 4 C.F.R. § 21.1(a), 21.1(i) (2012) (defining interested party and delineating GAO’s procedural requirements).

31


I wasn’t sure how to cite to the unnumbered page. NAB


No FN. Qualifying language “may” suggests that this is the author’s opinion. NAB


No FN. Conclusion based on preceding text. NAB


The substantiating source for AMEC Earth is pretty ambiguous. I’ve checked with Jessie Pierce to see if Dean Gordon received any other information about AMEC in his FOIA request, but I probably won’t hear back from her until Monday at the earliest. NABI think this is fine. It was in response to dean gordon’s request for info on this solicitation and the solicitation was for multiple contracts. KSB

Adam, 01/24/13,

Fine. AAB

Adam, 01/24/13,



I was unable to find a Comp. Gen., CPD, or Westlaw version of the 2011 Velos decision. NAB


The substantiating source for MPRI (the internet citation) is ambiguous, but Dean Gordon believes it is sufficient to substantiate his claim and I think we should defer to his judgment. NAB

without action by the GAO, so that the GAO closed its files

without issuing a decision.96 There is no publicly available

information on that large universe of protests where the GAO was

told that the protester “obtain[ed] some form of relief,” as the

GAO writes in a footnote to FY 2012its annual report.97 In

particular, there is no way to know whether the protesters

ultimately obtained the contracts at issue, and discovering the

outcome in each of the affected procurements would challenge even

the most diligent researchers, becausesince, as far as the author

knows, the GAO does not publicly disclose any information about

the cases that it closes due to agencies’ voluntary corrective

action.98 There is, however, no obvious reason that an agency

would be is more likely to award a contract to a protester whose

case ends without a GAO decision than the agency would be after

the GAO rules in athe protester’s favor.

IV.[V.] Costs of the Bid Protest Process

A key component of the harm of thecaused by the protest

process is the delay that protests cause. Even when a bid

96 See BID PROTESTS INVOLVING DEFENSE PROCUREMENTS, supra note 41, at 4.See GAO report, supra note 7697 See discussion supra pages 15-16Part IV.A.U.S. GOV’T ACCOUNTABILITY OFFIC E , GAO-12-199SP, BID PROTEST STATISTICS FOR FISCAL YEARS 2007-2011 4 (2011). 98 See 31 U.S.C. § 3553(d)(4).FAR 33.104(b)(1) (establishing that agency must delay the award upon notice of bid protest); FAR 33.104(c)(1)(establishing rules for post-award protest timeframe to trigger a stay with GAO)

32






I’m a little worried that this source does not fully substantiate the assertion, although it at least supports the assertion. NAB

Adam, 01/24/13,

KL and ST – I see what NB’s talking about, so I prefaced the FN w/ the cautionary “Cf.” AAB

protest is denied, it holds up the protested acquisition.99

SpecificallyIn particular, when a protester files in time to

trigger the automatic stay under the CICA, the agency mustwill be

required to hold off on awarding the contract at issue (for pre-

award protests) or to direct the contractorthe awardee to stop

work (for post-award protests).100 The automatic stay for

protests filed with the GAO can last up to 100 days,That

automatic stay at GAO can last up to 100 days—the, amount of

time that GAO is given under CICA to resolve protests 101—which is

generally longer than the period of time other jurisdictions

worldwide allow for their bid protest processesadministrative

fora are generally given to resolve protests, at least where

suspension there is an automatic suspension of a procurement is

availablethe automatic suspension of a procurement in any other

country’s protest system, at least among the many systems that

the author has reviewed.102 Even if the GAO dismisses a protest,

whether because it was untimely filed or because the protester

99 See Daniel I. Gordon, Dismissals of Bid Protests at the General Accounting Office, THE PROCUREMENT LAW. YER , Vol. 37, No. 2 (Winter 2002), 15, 161, at 16.100 See 31 U.S.C. § 3553(d)(4).101 See id. 31 U.S.C. § 3553(d)(4)(B) (2006) (noting that a protest must be filed within five days of a requested and required debriefing in order to trigger athe CICA stay); 4 C.F.R. § 21.2(a)(2) (2012) (noting that a protest must be filed within ten days of requested and required debriefing in order to be timely at the GAO).102 See BID PROTESTS INVOLVING DEFENSE PROCUREMENTS, supra note 42, at 5; 31 U.S.C. § 3554(a)(1) (requiring the GAO to resolve protests within 100 after they are filed).

33

Michael Freishtat, 01/22/13,

May want to add footnote for this portion of the sentence: 4 CFR § 21.2(b) (1999)--MF


Searched but was unable to find any sources supporting this information--MF


This is not automatic for at least the Ukraine. KSB


Has same source # as 75, however citation is from a different source--MF


No FN. Substantiated by following text and FNs. NABMoved up next cite to substantiate. KSB

does not qualify as an ‘interested party’ with standing to

protest,103 the dismissal can take several weeks, and even the

most promptly dismissed protests may trigger a CICA stay that is

in place for at least a few days.104 In short, the CICA stay does

disrupt procurements.

The discussion above makes clear, however, thatHowever, the

CICA stay applies to only to a smalltiny percentage of all

federal procurements, so that any harm caused by the CICA stay is

also more limited than might initially appear. As discussed

above, Iin FY 2011, as noted earliery, approximately 1,470

procurements were protested to the GAO.105 While specific

information is not publicly available, it is likely that not all

of thoese 1,470 protested procurements would have been stayed,

given that. Oonly protests filed within specified deadlines

trigger a CICA stay.,106 and aAt least some of thoese 1,470

103 See BID PROTESTS INVOLVING DEFENSE PROCUREMENTS, supra Supra note 4154, at 5; 31 U.S.C. § 3554(a)(1) (requiring the GAO to resolve protests within 100 after they are filed).Id.104 Id. at 7. U.S. GOV’T ACCOUNTABILITY OFFICE , B-401197, REPORT TO CONGRESS ON BID PROTESTS INVOLVING DEFENSE PROCUREMENTS 7 (2009).Needs cite.105 MOSHE SCHWARTZ & KATE M. MANUEL, CONG. RESEARCH SERV., CONGRESSIONAL RESEARCH SERVICE, REPORT NO. R40227, GAO BID PROTESTS: TRENDS, ANALYSIS, AND OPTIONS FOR CONGRESS 10 (2011).106 For FY 2002, the last year that GAO included information on overrides in its annual report on protests, GAO reported that, with respect to the 1,101 protests filed that year, there were 657171 (report seems to indicate there were only 65, not 71) instances of agencies’ using their override authority to move forward with the procurement, notwithstanding the protest. U.S. GOV’T ACCOUNTABILITY OFFICE , GAO-03-427R, BID PROTEST ANNUAL REPORT TO THE CONGRESS FOR FISCAL YEAR 2002 3, 4

34


For pre-award protests, there appears to be no established time frame in which GAO must receive notice, because there is no set award time to measure against (as there is with post-award protests)--MF


No FN. Author’s opinion. Logic behind the opinion is also presented in following text. NAB


I wasn’t sure how to cross reference this. The 1,470 figure is based on a series of assumptions on calculations explained on pages 15-16. NAB


No FN. Conclusion based on preceding discussion. NAB


No FN. Conclusion based on preceding text. NAB

Adam, 01/25/13,

KL and ST – Recommend deleting this preposition b/c sentence is otherwise too wordy. Also recommend deleting corresponding FN. AAB

protests were either untimely filed for GAO protest purposes,

such that they were dismissed (indeed, timeliness is one of the

GAO’s most common bases for dismissing protests107) and even some

of the protests that were timely -filed for GAO purposesprotests

may have been filed too late to trigger a CICA stay.108 For

example, a protest filed six6 to ten10 days after a debriefing

will usually be found timely for the GAO’s filing purposes, but

it will not trigger a CICA stay, because a protest must be filed

within five5 days of a debriefing to trigger a stay.109

Moreover, the fact that a protest has triggered athe CICA

stay does not mean that the procurement will be on hold for 100

days.110 Most protests are resolved well before the 100thth day,

which is, (the maximum length of time the GAO has for resolving a

protest CICA’s automatic stay).111 In 2009, the GAO reported to

Congress that it consistently closed more than half of all

Department of Defense (DoD) protests within 30 days.112 While

(2003). http://gao.gov/assets/100/93966.pdf107 See 31 U.S.C. § 3554(b)(1)(B) (2006).Needs cite.108 See supra Part IV.B. 109 See id.110 See supra Part IV.A.111 See 31 U.S.C. § 3554(c)(1)(A)-3554(c)(1)(B) (permitting the Comptroller General to recommend that the procuring agency pay successful protesters’ protest related fees).; see also KATE MANUEL & MOSHE SCHWARTZ, CONG. RESEARCH SERV., REPORT NO. R40228, GAO BID PROTESTS: AN OVERVIEW OF TIME FRAMES AND PROCEDURES n.100 at 15 (June 30, 2011).112 Metzger & Lyons, supra at 12, at 1237-38, n.66. See, e.g., Advanced Envtl. Solutions, Inc.—Costs, 20 Comp. Gen. 111,984 (2005) (noting that protest costs may be awarded where an agency unduly delayed taking corrective action on a meritorious

35


Neither GAO report nor CICA mention an maximum length for the CICA stay. However, CICA does require the GAO to resolve protests within 100 days of filing EXCEPT where a protest is amended such that it cannot be resolved within 100 days. My understanding then is that the CICA stay will usually last no longer than 100 days but that it could if a supplemental protest was filed. If my understanding is correct, we will need to change the above-the-line text. NABFAR 33.104(f) states that the GAO attempts to issue the opinion within 100 days even when there is an amended protest. KSB


No FN. Substantiated by following text. NABMoved up next cite to substantiate. KSB

Adam, 01/25/13,





I cited this as a nonconsecutively paginated journal. I’m not sure this was correct. NAB.I am not sure there is a pdf/hard copy source for this. Emailing Nichole. KSB

http://gao.gov/assets/100/93966.pdf

that report related to protests of DoD procurements,113 there is

no reason to believe that protests of civilian agencies’y

procurements (which are fewer in number than DoD protests)114 take

longer for the GAO to close.115 The A CICA stay may end because

the protester has withdrawn the protest, or because the GAO has

dismissed the case.116 When the an agency takes corrective

action, that also ends the stay, but, of course, the corrective

action itself will generally delay progress in the procurement.117

Even for the minority of protests that make itgo to the published

protest);Compare see, e.g., Takota Corp.-CostsCorp.—Costs, 22 Comp. Gen. 112,464 (2007)B-299600 et al., 2007 CPD ¶ 171, at 3 (Comp. Gen. Sept. 18, 2007)(finding no need to award attorney fees because Coast Guard complied with regulations by swiftly correcting solicitationtaking corrective actions) with Advanced Envtl. Solutions, Inc.-Costs, B296136 et al., 2005 CPD ¶ 121 at 2-3 (Comp. Gen. June 20, 2005)(finding attorney fees should be awarded because agency unduly delayed taking corrective action on meritorious protest).113 See Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970) (describing the role of “private attorneys general in monitoring compliance with federal procurement law).114 U.S. GOV’T ACCOUNTABILITY OFFICE , B-40047.3, Matter of: Core Tech International Corporation-Costs 2 (2009).Competition in Contracting Act of 1984, 31 U.S.C. § 3554 (c)(2) (2006). Under CICA, only small businesses may be reimbursed attorneys’ fees at a rate over $150 dollars per hour unless the contracting agency and the GAO find that a higher reimbursement of attorneys’ fees at a higher rate is warranted. Id.115 See Robert S. Metzger, supra note 15, at 1240 & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 WIS. L. REV. 1225, 1240 (2007); see also Jonathan R. Cantorn, Note, Bid Protests and Procurement Reform: The Case for Leaving Well Enough Alone, 27 PUB. C ONT. L.J. 155, 172 (1997)(recounting proposed regulations aimed at preventing frivolous protests).116 BID PROTESTS INVOLVING DEFENSE PROCUREMENTS, Ssupra note 4154, at 110-154.117 Id. at 11-12.3.

36

decision stages, –which s – which means that they form the group

of protests for which the stay remains in place the longest time—

the GAO e – GAO has reportedreports that, on average, the it can

issue a decision within 80 daysdecisions are is issued bybefore

the 80th80th day.118

Not only is the delay caused by the CICA stay shorter than

it may appear, – when a delay, even a relatively short one,

could cause harm, the CICA provides a mechanism for agencies to

move forward with protested the procurements while the protests

remainareis still pending.119 This “override” mechanism is

available to agencies, and is used, although information on the

frequency of overrides is not readily available.120

The truly long delays—disruptings – disrupting the

procurement for many months—occurs – occurTruly long procurement

delays lasting for months really only occur when the GAO issues a

decision sustaining a protest and the agency then implements the

GAO’s recommendation, , (which typically calls for the agency to

re-do at least part of the competition for the contract).121 The

universe of such cases, however, is quite small: as explained

above, there are only a few dozen sustained protests in a year

(as noted above, there were 4535 procurements in which the GAO

118 Id. at 12.119 Id.Id. at 12 n.13.120 Id.GAO 2009 report at 12 n. 13.121 Id. at 2.

37

Lauren Brinker, 01/22/13,

Report that substantiates fact is from 2002. I checked, but subsequent reports do not include statistics about time it took to make decisions.Note that the 71 figures includes the 65 cases mentioned in the report as well as the six cases reported where award was made after a protest was filed (see Table A in the GAO Report). NAB

Adam, 01/25/13,

KL and ST – Again, wordiness. AAB

sustained protests in FY 2010),122 and, of those, some dodid not

lead to delay in the procurement after the GAO has issued its

decision, either because the decision did not contain a

recommendation for corrective action or because the agency

declined to follow the GAO’s recommendation.123 That leaves a

relatively small number of procurements, which the author

estimates is—almosts – almost certainly fewer than 40 out of the

200,000 procurements per year ballpark used in this

article,estimate used here for each year’s procurements—ins – in

which there is any substantial delay due to a successful

protest.124

Finally, Iin the author’s view, there is adequate

justification for a substantial delay in a procurement where the

GAO has determinedfound that the agency violated procurement law,

and that the violation has harmed the protester. In any event,

122 GAO 2009 report at 12.Id.123 Id. at 13.124 Id. ((U.S. GOV’T ACCOUNTABILITY OFFICE, B-401197, REPORT TO CONGRESS ON BID PROTESTS INVOLVING DEFENSE PROCUREMENTS 13 (2009).)) It is worth noting that protesters have only limited information about what happened during a procurement at the time that the strict time limits require them to decide whether to file a protest, because. Mmany agencies disclose to firms that lost competitions for contract only the bare minimum required by law. See Federal Acquisition RegulationFAR section 15.505, 15.506. It is often only through the protest process that protesters (or at least their counsel) learn in detail why they lost the competition for a contract. While review of the full agency record may eventually demonstrate that some initial protests are without merit, in other cases, review of the entire file confirmsdiscloses that the protests are, indeed, meritorious.

38



again in the author’s viewAt the very least, any delay that such

anthe agency’s unlawful action has caused should notcannot fairly

be blamed on the bid protest system.

Critics of the protest system may also view as a costthe of

the protest system GAO’s authority to recommendrecommendation

that successful protesters be reimbursed the costs of filing and

pursuing their protests, including costs attributable to their

attorneys’ fees, as another cost of associated with bid

protests.125 Thisat situation arises only when the GAO finds that

a protest is clearly meritorious, which --meansing, meritorious—

meaning, again, that the contracting agency violated procurement

law to the detriment of the protester—soprotester, and when—and

that the agency has unduly delayed taking corrective action, so

that (1) at issue are only a small number of protests each year,

and (2) those cases are ones where the protest system has

identified unlawful action by the government.126 In the author’s

125 31 U.S.C. §3553(d)(3)(C); see alsoSee See Kovacic, supra note 12, at 489 (describing this type of criticism); see, e.g., Keeton Corrections, Inc., v. United States, 59 Fed. Cl. 753, 754-55 (2007).; Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 WIS. L. REV. 1225, 1239 (2007).126 Indicative of the fact that these three conditions are unlikely to occur with much frequency is the fact that government agencies are under no special requirement, beyond those outlined in the CICA, to include incumbent contractors in solicitations for follow-on contracts. See, e.g., Rut’s Moving & Delivery Serv., Inc., 67 Comp. Gen. 240, at 243-44(1988) (finding requirement for full and open competition had been met despite agency having mistakenly failed to solicit incumbent contractor).

39


I deleted the pincites here because I was unsure which page numbering to follow: that in the CCH version of the Comp. Gen. or that in the original GAO decision that is posted online. NAB


No FN. Author’s opinion.

view, reimbursing protesters for their actions as “private

attorneys general” is justifiableed.127 In any event, the

reimbursable rates for attorneys’ fees in those situations are

now capped, except for small business protesters.128

That said, critics point to abuse of the protest system in

particular contexts as causes for concern. Specifically, there

are persistent complaints that abuse arises in the form of

“frivolous” protests, and the author has often heard calls for

imposing sanctions on firms that file frivolous protests.129 In

the 2009 report to Congress on DoD procurements, mentioned

earlier, the GAO responded to a request questions from the House

Armed Services Committee to address frivolous protests filed in

connection with DoD procurements.130 The GAO pointed out that the

127 See supra note 140 and accompanying text.128 See Schaengold, supra note 53, at 318 (noting the possibility of sequential protests); see, e.g., .28 U.S.C. § 1491(b)(1)(granting the Court of Federal Claims subject matter jurisdiction over bid protest claims); 5 U.S.C. § 706(2)(A)(establishing the standard of review for hearing bid protest claims); see also Axiom Res.ource Mgmt.anagement, Inc. v. United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (where protester was unsuccessful at the GAO and then sought review by the Court of Federal Claims).; Michael J. Schaengold et al., Choice of Forum for Federal Government Contract Bid Protests, 18 FED. CIR. B. J. 243, 318 (2009). 129 There may be no CICA stay if either the protest does not meet the timeliness rules for a CICA stay or if there is an agency override. See FAR 33.104(b), 33.104(c)(1) (indicating the timeliness rules for an automatic CICA stay); 31 U.S.C. § 3553(c)(2), § 3553 (d)(3)(C) (2006) (permitting an agency override the automatic stay in certain circumstances).130 See 28 U.S.C. § 1491(b)(2) (2006) (granting the Court of Federal Claims jurisdiction to provide injunctive relief); Akal Sec., Inc. v. United States, 87 Fed. Cl. 311, 316-17 (Fed. Cl.

40


No FN. Very general statement that is supported by the more specific statements that follow. NAB

Lauren Brinker, 01/22/13,

Not supported by 31 U.S.C 3553. I found a GAO decision that supports the asserted facts and cited below.

fact that a protest iswas denied or even dismissed doesid not

mean that it wais frivolous; instead, the GAO expressed the view

that only a protest filed in bad faith should be viewed as

frivolous.131 In any event, the GAO reported that it did not

categorize protests as frivolous, and therefore it had no data on

the number of frivolous protests filed.132 It did point out,

however, that contracting agencies rarely assert that protests

are frivolous.133 In a footnote, the GAO indicatedreported that

the last reported decision noting that an agency had

characterized a protest as frivolous washad been issued in 1996,

and that, in that case, the agency subsequently acknowledged that

the evaluation scheme used in the protested procurement was

flawed.134

In its 2009 report, the GAO asserted thatpointed to its

practice of promptly dismissing protests as indicatingindicated

2009) (delineating the factors considered in granting injunctive relief).. See also 28 U.S.C. § 1491(b)(2)(2006). 131 See, e.g., Analytical & Research Tech., B-276064, 97-1 CPD ¶ 200 (Comp. Gen. May 7, 1997); Analytical & Research Tech., Inc., 39 Fed. Cl. 34, at 40 (1997).132 See 28 U.S.C. § 1491(b)(2).133 See, e.g., Turner Constr. Co., Inc. v. United States, 94 Fed. Cl. 561, 586 (Fed. Cl. 2010).134 See Myth-Busting, supra note 55, at 7 (noting that Contracting Officers sometimes attempt to “protest-proof” procurements when that should not be the overriding goal).Daniel I. Gordon, Memorandum: “Myth-Busting”: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process, WHITEHOUSE.GOV 1, 7 (February 2, 2011), http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/Myth-Busting.pdf.

41

that there was no problem with frivolous protests that

neededneeding to be solved.135 The GAO also expressed concern

that any effort to impose sanctions on frivolous protests (such

as by imposing a fine or requiring the protester to reimburse the

gGovernment for costs incurred in defending against the protest)

would risk “the unintended consequence of harming the federal

procurement system by discouraging participation in federal

contracting and, in turn, limiting competition.”136 The GAO also

pointed out that penalties could not properly be imposed on

“frivolous” protesters without adding a new layer of litigation,

forin which the GAO would then need to determine whether the

protesters had filed theirits protests in bad faith.137 Besides

135 When the lowest price technically acceptable source selection process is used award must be made to the lowest-priced offer that meets the minimum technical requirements; tradeoffs are not permitted. See FAR 15.101-1(ac) (20092011) (permitting agencies to use tradeoff process when it would be “in the best interest of the Government”).(“rationale for tradeoffs must be documented”). 136 See id.137 See Christopher R. Yukins, Integrating Integrity and Procurement: The United Nations Convention Against Corruption and the UNCITRAL Model Procurement Law, 36 PUB. CONT. L.J. 307, 327-28, 328 n.70328 (2007) (suggesting that the United States preference for negotiated procurement is a strong advantage, but is not widely used worldwide because the U.S. enjoys relatively low levels of corruption); IVAR STRAND, PAULA RAMADA & AND ERIK CANTON, PUBLIC PROCUREMENT IN EUROPE: COST AND EFFECTIVENESS 7, 15 (March 2011) (noting that the Eurozone rarely uses negotiation in favor of competitive auctions); Patrick Bajari and Steven Tadelis, Incentives and Award Procedures: Competitive Tendering vs. Negotiations in Procurement, in Handbook of Procurement 121, 125-26 (Nicola Dimitri ed., 2006) (arguing that, properly structured, negotiated procurements offer strong advantages for advanced projects); Shigeki Kusunoki, Japan’s Government Procurement Regimes for Public Works: A Comparative Introduction, 32 BROOK.

42

the burden that such litigation would place on the GAO,

distracting it from its focus on resolving protests as quickly as

possible, athat new layer of litigation could impose additional

costs on agencies and protesters, and the burden of those

additional coststhe burden for which might fall

disproportionately heavily on small businesses and protesters not

represented by counsel, thatwho may have protested in good faith

but, even if they acted with a misunderstanding of the facts or

the law.138

Those who allege that some protesters abuse of the system

sometimes point to one scenario in particular: situations where

a service contractor has lost thea competition for a follow-on

contract and then files a protest in order to continue working

during the period of the CICA stay.139 This concern may be

legitimate, although the extent of the problem is not clear.

Thise concern would be particularly great if (1) many protests

J. INT'L L. 523, 526-28 (2006) (noting that, historically, negotiated procurements were rarely used in Japan now allows for negotiated procurement as a viable alternative to auction).138 See supra Part IV.A.139 See, e.g., Guzar Mirbachakot Transp. v. United States, 104 Fed. Cl. 53 (Fed. Cl. 2012) (lowest price, technically acceptable (LPTA) case at COFC); Ahtna Facility Servs., Inc., B-404913 et al., 2011 CPD ¶ 134 (Comp. Gen. June 30,2011) (LPTA case at GAO). Asia Pacific Airlines, v. U. S. and Corporate Air, Alpine Air, and Aloha Airlines, Inc., 68 Fed. Cl. 8, 24 (2005) (protest sustained because of government’s failure to engage in final negotiations with a bidder); SYS. RESEARCH & APPLICATIONS CORP. , Comp. Gen. B-299818 et al., Sept. 6, 2007, CPD ¶ 28, at 24-28; MOSHE SCHWARTZ AND KATE MANUEL, CONG. RESEARCH SERV. , R40227, GAO Bid Protest: Trends, Analysis, and Options for Congress 11 (2009).

43



were found to have been filed by service-contract incumbents

thatwho had lost the competitions for the follow-on contracts,

and (2) their whose their protests were completely without merit,

but (3) the GAO was so slow in resolving the protests that the

incumbent was able to continue to performperforming well after

its contract had been due to expire.140 However, Tthe author is

not aware of any data suggesting that many protests meet thoese

conditions supporting those three statements.141 The appropriate

response, in any event, would appear to be to press the GAO to

continue (or intensify) its efforts to resolve the protests

promptly, —noty – not to create a new round of litigation about

the imposition of sanctions, and certainly not to limit or

abolish vendors’ right to have an independent body consider

their claims of unlawful action by the contracting agenciesy.

The final category of costs often associated withwith

alleged abuse of the protest system concerns is composed of

sequential protests, s—thats – that is, situations where a

140 See Sdiscussion supra, Ppart III.141 See Stevphen L. Schooner, Fear of Oversight: The Fundamental Failure of Businesslike Government, 50 AM. U. L. REV. 627, 681707-13 (2001) (contending that “In economic terms, ther protest and dispute regimes system . . . [is]are a bargain” and that “Opponents of litigation are hard pressed to demonstrate a more cost, effective, less intrusive . . . compliance regime.”)[suggesting that insufficient oversight leads to normative costs well beyond dollar for dollar comparisons); compare 31 U.S.C. § 3554(a)(1) (requiring GAO to issue a decision within 100 days) with McKing Consulting Group v. United States, 78 Fed. Cl. 715, 716 (2007) (deciding protest ten months after agency action).

44



Adam, 01/25/13,

KL – Added FNs. AAB


No FN. Stated assumption. NAB



protester loses a protest at the GAO and then protests at the

Court of Federal Claims.142 Presumably, the situation could be

made to sound worse by imagining that manya cases protesting

procurements arein which a procurement isfirm protesteds first

brought to the contracting agency, then to the GAO, then to the

Court of Federal Claims, and finally to the Federal Circuit.143

This latter scenario is mere speculation, however, however, an

instance of imagining the hypothetical, with no evidence thatof

the nightmarish four-foraum pattern occurs often ever actually

142 See 31 U.S.C. § 3553(a) (2006) (conferring jurisdiction on the GAO to review procurements protested by an interested party“[T]he Comptroller General shall decide a protest submitted to the Comptroller General by an interested party…”); 31 U.S.C. § 3551(2) (2006) (defining “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract” or an agency official or agent representing federal employees who stand to be injured by private competition); 31 U.S.C. § 3553(d)(4) (2006) (limiting stay on performance to timely filed protests to GAO); 31 U.S.C. § 3554(a)(4) (2006) (allowing for dismissal of frivolous protests by GAO); 28 U.S.C. § 1491(b)(1) (2006) (granting the Court of Federal Claims jurisdiction to hear claims brought by “interested parties”); FED. R. CIV. P. (procedural rules governing Court of Federal Claims); 4 C.F.R. §§ 21.1, 21.2 (20121) (procedural rules governing bid protests at regulations regarding time of filing forthe GAO).143 See Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859, 864 (D.C. Cir. 1970) (“The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a ‘private attorney general.’”); See Schooner, supra note 131, at 630, 680-84 (arguing that “private attorneys general” litigation is a public good).

45

Killion, 01/22/13,

I just realized that my cites do not show an agency to GAO protest, but you could still say there is an inference. CKRESOLVED by using Honeywell as source. NAB

occurring.144 Indeed, even when it does occurif it did occur, it

is not clear that the procurement would always be disrupted,

since there might be no CICA stay at the GAO,145 and the courts

would certainly have discretion not to impose a preliminary

injunction.146 While there are some protesters thatwho start at

the GAO and then go to the Court of Federal Claims,147 the numbers

is likely to beare so small (certainly fewer than 50 in a year),

and the evidence that the underlyingthe procurements to these

protests have been substantially delayed is likely to beheld up

so thin (again, there is no automatic right to a stay at the

Ccourt) 148, that this cannot legitimately be seen as a

significant cost of the bid protest system. In factMore

importantly, the Ccourt occasionally reaches a different outcome

144 It should, though, be noted that in situations where all the bidders colluding, none may have an interests in protesting, so that the protests system would not provide accountability in that case. Indeed, if anything, in those situations protests may serve as a means for colluding bidders to police their collusive agreement. See Kovacic, supra note 12, at 490-91.145 See generally Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law, 11 Pub. Procurement L. Rev. 103 (2002).146 See Am. Fed’n of Gov’t Employees. v. Rumsfeld, 262 F.3d 649, 657 (7th Cir. 2001) (statingnoting that the CICA, by requiring full and open competition, was intended to “save money, curb cost growth, promote innovation and the development of high quality technology”).147 See Boeing Co., 23 Comp. Gen. 112,629 (2008); Leslie Wayne, Audit Says Tanker Deal Is Flawed, N.Y. TIMES , June 19, 2008, at C1.148 THE BOEING COMPANY , B-311344 et seq., June 18, 2008, 2008 CPD ¶ 114; See Leslie Wayne, Audit Says Tanker Deal Is Flawed, N.Y. Times, June 19, 2008, at C1.The Boeing Company, B-311344 et seq., June 18, 2008.

46



Killion, 01/22/13,

Maybe “procurements have been stayed so thin (again, there is not autmatic right to stay at the court)." CKI think the current wording works and would prefer to leave Dean Gordon’s word choice. NABComment from Dean Gordon: Markup suggests a FN is needed here - but it is just restating what is said earlier - we could refer to the FN with Akal, if you want, or change "a stay" to "an injunction".


This cite is not necessary—restating the previous sentence. I think we should change the “fewer than 50" language if we’re going to defer to dean gordon’s opinion and not cite this. KSB

Killion, 01/22/13,

Potentially could need cite, but maybe not – I did not have much luck finding anything; I could look harder if needed. I did find a case that gave a policy that the courts would not interfere with the procurement process. That might work; I will try to find it again. I also found a Westlaw Briefing Paper, that states that prelim injunctions are rare, but I would think Dean Gordon saying it is more credible that the lawyer who wrote the paper, which also did not cite anything. CKard must be made to the lowest-priced offer that meets the minumum fi


This entire section was undermined by Honeywell. It should probably be cut or re-written. I’ve made a few changes to make the statement more accurate given Honeywell. NABSO, Honeywell shows it can happen. Not sure it undercuts Dean Gordon’s statements—also not sure we need to FN the “imagining the hypothetical statement or the “might be no CICA stay” statement. They are not statements of fact. KSB

Adam, 01/25/13,

KL and ST – I like this FN and would recommend keeping it.


This FN is here to explain why it is possible that the procurement may not be stayed (because the stay could legally be overridden or the protest may not be timely for stay purposes). After going through the article up to this point, I think this FN is unnecessary and excessive. I would recommend removing the FN. NAB

Killion, 01/22/13,

The cite below could be contrary. CK.

than the GAO diddid GAO,149 which suggests, if nothing else, that

the protest was not frivolous.

Another concern about the cost of the protest system relates

to what might be called its indirect impact. Fear of protests is

often given as the explanation for cContracting oOfficers’

preference for certain courses of action over others.150 In

particular, cContracting oOfficers have told the author that they

actareare said to be acting to avoid bid protests when they

decide that a contract should be awarded to the lowest-priced -

price,d technically acceptable (LPTA) proposal, rather than to

allow for a tradeoff.151 The author has never seen any data that

would indicate how often cContracting oOfficers actually decide

to make an award on an name LPTA as the award criterion in a

solicitationbasis for this reason alone, nor any data on how

often source selection officials avoid making tradeoffs in anthe

award decisions, even when permitted to by the terms of athe

solicitation, justin order to avoid protests. If the phenomenon

is common, it is unfortunate, since discretion to make tradeoffs

is a positive option in the U.S. procurement system.152

149 See Vernon J. Edwards & Ralph C. Nash, Jr., Postcript II: The Role of the Contracting Officer, 24 No. 3 NASH & CIBINIC REP. ¶ 15 (discussing pressures Contracting Officers routinely face).150 See Autocar Sales & Serv. Co., A-11259, 5 Comp. Gen. 712 (1926).See Comptroller General McCarl to the Governor, the Panama Canal, 5 Comp. Gen. 712, A-11259 (Mar. 9, 1926)151 See generally Schooner, supra note 161.152 The Federal Procurement Data System (FPDS) was created by the Office of Federal Procurement Policy (OFPP) in response to a

47



Adam, 01/25/13,



No FN. Author’s personal experience. NAB

Killion, 01/22/13,

Cite supposed to show that having to rationalize could create risk of protest. CK

Killion, 01/22/13,

No “d” CK


No FN. This very vague statement is substantiated by the subsequent text. NAB



Killion, 01/22/13,

Should I add a parenthetical in the cite such as (One such example). CK RESOLVED.

Similarly, the author has heard for many years that some

cContracting oOfficers prefer to make award based on initial

proposals, rather than to conduct discussions, because they fear

that conducting discussions with offerors are a legal minefield,

sucho that conducting discussions will increase the likelihood of

a bid protest, and increase improve the protester’s chances of

prevailing, if a protest is filed. Again, that would represent a

loss, since the ability to conduct discussions with offerors is a

good feature of our acquisition system, which few systems around

the world haveis not a prominent feature of many others around

the worldand is not often used in other systems around the

world.153 If conducting discussions and requesting revised

congressional requirement in the Office of Federal Procurement Policy Act that the OFPP “establish a system for collecting, developing, and disseminating data which takes into account the needs of the Congress, the executive branch, and the private sector.” Pub. L. No. 93-400, § 6, 88 Stat. 796, 798 (codified at 41 U.S.C. § 405); see also FAR 4.602 (2011) (describing the FPDS); U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-960R, IMPROVEMENTS NEEDED TO THE FEDERAL PROCUREMENT DATA SYSTEM-NEXT GENERATION 1-2 (2005). Although the FPDS is meant to provide transparency in federal contracting by enabling the public and members of the Government to access accurate data about government procurements, the accuracy and timeliness of the data in the FPDS have been criticized. See id. at 2-5; Letter from Sen. John F. Kerry, U.S. Senator, to Robert A. Burton, Assoc. Adm’rin. of the Office of Fed. Procurement Policy. (Nov. 145, 2005) (on file with author), available at http://asbl.com/asbl.resource/content/supdoc/kerry_letter.pdf (noting several limitations of the Federal Procurement Data System that hinder transparency).153 Following a number of the GAO bid protest decisions arising from public/private competitions under OMB Circular A-76, the Congress created the Commercial Activities Panel through the Floyd D. Spence National Defense Authorization Act for Fiscal

48

Chris Bell, 01/22/13,

This is a very broad statement, and difficult to cite. I would recommend the author narrow the scope of his comments, or alternatively unpack this phrase more. CBI think that the rewritten statement is narrow enough to be substantiated by the sources we have found thus far. NABI wasn’t sure how to cite the report by Strand, Ramada, and Canton. The citation currently follows R15. I wasn’t sure if we should include the European Commission, or alternatively PwC et al, as institutional authors. NAB


No FN. Author’s personal experience. NAB


Even if no citation is necessary, it might be beneficial to explain the alleged thought process of the COs. My understanding is that they think discussions are hyper-regulated and prone to breaching the rules, whereas the author thinks this is not the case. CB

proposals would cause firms to reduce the prices offered to the

Government, as can certainly happen, making award based on the

proposals initially submitted would “leave money on the table,”

to the detriment to taxpayers. As with excessive reliance on

LPTA award criteriaSimilar to the extent to which Contracting

Officers use LPTA rather than tradeoff to avoid protest, wethere

is a lack of data about how common it is for cContracting

oOfficers to award based on initial proposals in ordermerely to

reduce the likelihood of a successful protest. In any eventboth

situations, the author is skeptical that there is any good reason

to try to “protest-proof” an acquisition in this way, especially

in light of how rare protests are, and how exceedingly rare

successful protests are.154 Moreover, neither using LPTA as the

Year 2001. See Pub. L. No. 106-398, § 832, 114 Stat. 1654, 1654A-221 (2000); COMMERCIAL ACTIVITIES PANEL, IMPROVING THE SOURCING DECISIONS OF THE GOVERNMENT: FINAL REPORT, 90-99 APRIL ( 2002) ( summarizing GAO protest decisions arising from public/private competitions under OMB Circular A-76). The Panel recommended a number of changes, many of which were adopted in the 2003 revision of OMB Circular A-76. COMMERCIAL ACTIVITIES PANEL at 51-52; OFFICE OF MGM’T & BUDGET, CIRCULAR NO. A-76 (REVISED 2003). Appendix D of the report summarizes GAO bid protest decisions arising from public/private competitions under OMB Circular A-76..154 See Daniel I. Gordon, Organizational Conflicts of Interest: A Growing Integrity Challenge, 35 PUB. CONT. L.J. 125, 32-4134, 37-38 (2005) (discussing organizational conflict of interest bid protests heard by GAO)., and cases cited therein. Section 207 of the Weapons Systems Acquisition Reform Act of 2009 (WSARA) called for tightening of the rules governing OCIs. See Pub. L. No. 111-23, § 207, 123 Stat. 1704, 1728. As of the time of this writing, a proposed rule is being considered to revise the FAR provisions on OCIs. Federal Acquisition Regulation: Organizational Conflicts of Interest, 76 Fed. Reg. 23,236 (proposed Apr. 26, 2011) (to be codified at 48 C.F.R. pts. 2-4,7, 9, 11-16, 18,

49



Adam, 01/25/13,



Might be a good place to acknowledge opinions of others on ability of CO to “protest-proof” an acquisition. CB


No FN. Cannot substantiate absence of data. NAB

basis for award, nor making award based on initial proposals,

without conducting discussions, will, in fact, ensure that no

protest will ever be held, as GAO and Court of Federal Claims

decisions ruling on protests of LPTA awards and initial-proposal

awards will testifydemonstrate.155 That said, it must be

recognized that in both areas, and potentially in others as well,

it is quite possible that the fear of protests, —whethers –

whether justifiable or not, —ist – is harming the acquisition

system by driving bad decisions by federal contracting personnel.

To mitigate thisat harm, efforts need toshould be made to improve

the knowledge of Ccontracting oOfficers’ knowledge about the

rarity of protests and the fact that making LPTA awards or

initial-proposals awards based on initial proposals will not

prevent protests, as well as the benefit to the gGovernment of

using tradeoffs and discussions as means to obtain a better deal

for the taxpayers.

V.[VI.] Benefits of the Protest Process

As noted above, countries around the world are developing

bid protest systems, and such systems have become, or are fast

becoming, part of the norm for good government in the acquisition

37,42, 52-53).155 Eugene Y. Kim, Late is Late: The GAO Bid Protest Timeliness Rules, and How They Can Be a Model for Boards of Contract Appeals, ARMY LAW. , Nov. 2007, at 30, 30 (noting the GAO’s timeliness rules are “ironclad” and that the late is late rule “has been referred to as the ‘golden rule’”).

50




Supra cite recommended. CB


Supra cite recommended. CB




This is in fact framed as the author’s opinion, but since it justifies the entire article, it should be cited. There are certainly sources out there, perhaps commenting on other procurement systems. This sentence should be expanded to say that “the fear of protests may harm the system by ……. (cite) and …… (cite).” CB

arena.156 That can be attributed to several benefits associated

with bid protests.

First, protests introduce a relatively low-cost form of

accountability into the acquisition systems by providing

disgruntled participants a forum for airing their complaints.157

Protesting firms decide which procurements are to be

investigated: —ifd – if no one protests, then neither the GAO nor

the Court of Federal Claims wouldill look into athe procurement,

but; if someone does protest, then the GAO and the Ccourtthey

would consider the procurementill (at least if the protest passes

the procedural hurdles, such as timelinesss).158 While reliance

on audits by government officials would also provide inject

accountability into the workings of the procurement systems, it

may be more efficient to focus on the procurements where a

participant is dissatisfied by a the government agency’s

conduct;, and that is what the “private attorney general” model

of a protest provides.159 In blunt terms, if no one is

156 See supra Part IV.157 See supra Part VI.158 See generally William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 Admin. L.J. Am. U. 461 (1995).id. at NA154-57 (describing the debate within the Comptroller General’s Office’s internal debate about whether it had jurisdiction to hear bid protests); Note, The Comptroller General of the United States: The Broad Power to Settle and Adjust All Claims and Accounts, 70 HARV. L. REV. 350, 360-61 (1956) (arguing that the Comptroller General’s role in government contracting was too broad and would cause harm federal agencies).159 See In the Beginning, supra note 2, at NA147.Comptroller General McCarl to the Governor, the Panama Canal, 5 Comp. Gen.

51


I would recommend this language be removed. The fact that no inquiry is made without the contractor initiating it is true without qualification. The fact that the contractor must comply with set procedures is obvious. CBAlthough the statement may be sufficient without including the parenthetical, I don’t think that it hurts to have the parenthetical and would defer to the author’s choice to include the language. NAB


Again not sure the extent to which this needs to be proved. I chose to cite the rules of civil procedure to show that the Court of Federal Claims doesn’t see a case unless someone files a complaint, but that may be obvious enough. CB


Another area where it is difficult to cite this properly. Relative to what? Particularly when you consider that there are vastly different costs involved in bringing the protest to an agency, GAO, or COFC, or all three. And the cost is certainly not low relative to having no bid protest system at all. Because I have to compare the cost of the system to something, I will assume he is contrasting agency and GAO protests against general litigation. CBI think the author’s point is really that bid protests are low-cost form of oversight because they rely on private-attorneys generals. The Schooner source seems sufficient to substantiate that assertion. NAB


No FN. Introduction that is substantiated by subsequent discussion. NAB

dissatisfied with the way the gGovernment conducted a

procurement, then it may not be a wise use of auditors’ time to

investigate it.160

Second, by being directly responsive to participants’

complaints, protests can increase potential bidders’ confidence

in the integrity of the procurement process, and therefore

thereby lead more players to participate, thus increasing

competition.161 Increasing competition, in turn, can translate

into bidders offering lower prices, higher quality, or both, to

the contracting agenciesy.162

Third, protests can increase the public’s confidence in the

integrity of the public procurement process. While the public

only rarely focuses on public contracting, having a the protest

process mentioned in the press, —as what happened when The Boeing

Company successfully protested the Air Force’s award of the a

712, A-11259 (Mar. 9, 1926).160 Today’s Government Accountability Office (GAO) was founded in 1921 as the General Accounting Office. See Budget and Accounting Act of 1921, Pub. L. No. 67-13, § 301, 42 Stat. 20, 23. Effective July 7, 2004, the GAO's legal name became the Government Accountability Office. See GAO Human Capital Reform Act of 2004, Pub. L. No. 108-271, § 8(a), 118 Stat. 811, 814 (2004)Effective July 7, 2004, the GAO's legal name became the Government Accountability Office. Pub. L. 108-271, 118 Stat. 811 (2004). This article uses the acronym “GAO” interchangeably to refer both to the current Government Accountability Office and its immediate predecessor, the Government Accounting Office. 161 See In the Beginning, supra note 2, at NA154-62.162 See id. at NA147; Daniel I. Gordon, Annals of Accountability: The First Published Bid Protest Decision, 39 PROCUREMENT LAW., no. 2, Winter 2004, at 11.

52


Fix em dashes. NAB


No FN. This also seems to be based on the author’s logical reasoning. NAB

Adam, 01/25/13,



No FN. This seems to be the author’s opinion based on a logical progression of thoughts. NAB

tanker contract to Northrop Grumman,163 —may, it can be hoped,

raise the public’s trust in the fairness of the gGovernment’s

acquisition system and the way it spends taxpayer funds.164

Fourth, because protests are a known avenue for complaints,

their availability empowers those in contracting agencies who

face pressure to act improperly. Thus, if a cContracting

oOfficer is were to be pressed by users within an the agency to

award a sole-source contract to a favored firm, the cContracting

oOfficer, —who may lack the bureaucratic clout to resist the

pressure, —couldan point to the risk of a successful protest as

one additional the reason to follow the statutory and regulatory

requirements for competition.165

Fifth, protest decisions, because they are public, and have

been released publicly since GAO issued the first one in 1926,166

provide a high level of transparency into what is happening in

the federal procurement system.167 While, in theory, databases

such as the federal Federal Pprocurement Ddata sSystem (FPDS)

should provide transparency into the system,168 protest decisions

163 In the Beginning, supra note 2, at NA148.164 5 Comp. Gen. 712, 713.Id. at 157-58..165 Id. at 160-62.58.166 Comp. Gen. McCarl to the Gov., the Panama CanalAutocar Sales & Serv. Co., 5 Comp. Gen. 712, 713 (1926); In the Beginning, supra note 2, at 158.5 Comp. Gen. 712, A-11259 (Mar. 9, 1926)..167 See, e.g., William E. Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes, 9 ADMIN. L.J. REV. AM. U. 461, 470 (1995); In the Beginning, supra note 2, at NA163.168 See, e.g., Letter to Sec’y of War, 16 Comp. Gen. 149, 150 (1936).See, e.g., New York Tel. Co. v. Sec’y of Army, 67 F. Supp.

53

Andrew Maxham, 01/22/13,

I found a source that calls into question the transparency of FPDS. I wasn’t sure whether it made more sense to use this source or a more general source about FPDS, such as the statute that created the system. ATM

Andrew Maxham, 01/22/13,

Added abbreviation so that it could be used in parenthetical. ATM


No FN. Same. NAB


No FN. Same. NAB

Adam, 01/25/13,



No FN. Again, just the author’s reasoning. NAB


REMOVE this FN. NABAgree, this is author’s opinion/conclusion. KSB

Adam, 01/25/13,

KL – Recommend deleting FN. AAB


Fix em dashes. NAB

can often provide more useful information than databases. This

is particularly the case where protests demonstrate how

problematic certain issues are. For example, when the GAO

sustained a significant number of protests challenging the way

agencies were conducting public/private competitions under OMB

Circular A-76 in the 1990s, that highlighted the importance of

improving the way those competitions were conducted was

highlighted, and the decisions ultimately leading led to

revisions to the Circular as well as the creation of the

congressionally-chartered Commercial Activities Panel.169

Similarly, it was the GAO’s sustainmenting of a number of

protests alleging organizational conflicts of interest that

focused attention with the procurement worldattention on this

area, and ultimately led to congressional and regulatory

action.170

Finally, the fact that protest decisions are published and

widely read by practitioners brings an additional benefit: the

decisionsy provide guidance, particularly to agency counsel and

attorneys representing potential protesters, as well as, of

18, 19 (D.D.C. 1986)169 See, e.g., Letter to Sec’y of Interior, 17 Comp. Gen. 770 (1938).KATE M. MANUEL & MOSCHE SCHWARTZ, CONG. RES. SEV., R 40228, GAO BID PROTESTS: AN OVERVIEW OF TIME FRAMES AND PROCEDURES 2-3 (June 30, 2011).170 Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 2007 WIS. L. REV. 1225, 1229 (2007).

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No FN. Substantiated by subsequent text. NAB



course, to their clients. To give just one example, which that

has been true for decades: any corporate counsel who follows GAO

bid protest decisions knows how strictly the GAO applies the

“late is late” rule, so that counsel will ensure that people

intheir client the company appreciates the importance of getting

bids protests in on time.171

[VII.] Conclusion: The Costs of the Bid Protest System A a re Overstated , and the System’s Benefits Outweigh Them

As explained above, the costs that bid protests impose on

the acquisition system are often misunderstood and therefore

overstated, in terms of the frequency of protests, the length of

time that they last, and the risk that an agency’s the agency’s’

choice of contractor will be overturned in the process.172

Moreover, the benefits of the protest system may not be fully

appreciated, as is the fact that the United StatesUnited

StatesU.S. is required by its international trade agreements to

have a protest system.173 Whatever costs protests impose on the

procurement system are outweighed, at least in the author’s view,

by the benefits that protests bring, in terms of transparency,

171 Scanwell Labs., Inc. v. ShafferUnited States, 424 F.2d 859, 876 (D.C. Cir. 1970) (holding that bid protests could be heard in U.S. district courts).172 The Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, § 12(d), 110 Stat. 3870,at 3874-1375, (amending 28 U.S.C. § 1491) (providinged for district courtthe District Court jurisdiction over bid protests to “sunset” on January 1, 2001).173 The Competition in Contracting Act (CICA), Pub. L. No. 98-369, 98 Stat. 1175, 1182 (1984)494, 714 (1984).

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Adam, 01/25/13,



This sentence is a little ambiguous to me. Is the fact that the US is required by its international agreements to have a protest systems not fully appreciated? Or is this fact fully appreciated whereas other benefits of the procurement system are not? NAB

Adam, 01/25/13,



May need a new source for this that looks at “late is late” rule for submitting bids rather than “late is late” rule for submitting protests. NAB.


No FN. Author’s reasoning. NAB

accountability, education, and protection of

theprotectingprotection of the integrity of the U.S. federal

acquisition system.

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bid protests: the costs are real, but the benefits...

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