Public Contract Law Journal

Midlife Crisis: An Assessment of New and Proposed Changes to the Government Accountability Office Bid Protest Function

by Daniel H. Ramish

Daniel H. Ramish is a Government Contracts Associate at Smith Pachter McWhorter, PLC, and an LL.M. candidate at The George Washington University Law School. Mr. Ramish thanks Professor Christopher Yukins for his advice and support in the preparation of this paper. Any views expressed herein are the author’s own and do not represent the views of his employer.

I. Introduction

A bid protest is a legal challenge relating to the solicitation or award of a contract by the federal government.1 Bid protests may be pursued with the procuring agency, the Government Accountability Office (GAO), or the Court of Federal Claims (COFC), but most protests are brought at the GAO.2 The Competition in Contracting Act of 1984 (CICA)3 requires the GAO to render decisions on bid protests within 100 days4 and automatically suspends award and performance of a protested contract until the protest is resolved,5 which is commonly referred to as a “CICA stay.”6 The GAO procurement law control group, which decides bid protests, has approximately thirty attorneys.7 Each year, the GAO’s procurement law group reviews on the order of a couple thousand bid protests, and publishes between 500 and 600 decisions,8 resolving virtually all protests within the statutory 100-day time frame.9

After more than ninety years adjudicating government contract award disputes, the GAO bid protest function has been subject to significant scrutiny of late.10 The impetus for such scrutiny may be that the number of bid protests has roughly doubled in the past twelve years, both in absolute terms and as a proportion of procurement spending. GAO protests increased from 1,212 protests in Fiscal Year (FY) 2006,11 to 2,433 filed in FY 2017,12 and increased from 2.8 protests per billion dollars in FY 2006, to approaching 5 per billion in FY 2017.13 As a result, there are a host of changes to the bid protest process in various stages of evaluation and implementation by Congress and the federal procurement community.

Reforms range from dramatic measures contemplated by the Section 809 panel,14 to provisions in the National Defense Authorization Act (NDAA) for Fiscal Year 2018,15 to reforms proposed in the Senate version of the NDAA that were not included in the final act,16 but which, like baseball players vying for induction in the Hall of Fame, may show up on the ballot again next year and have better luck. Concurrent with these reforms, pursuant to the 2017 NDAA, Congress commissioned the RAND Corporation to undertake a comprehensive study of bid protests;17 RAND submitted its report in December 2017.18 Taken together, the proposed and enacted changes and the new RAND report data are a useful lens with which to examine the modern GAO bid protest mechanism.

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