Multiple Fora for Bid Protests

[napolik]

http://www.federaltimes.com/article/20130328/TRAVEL02/303280004/Judge-orders-GSA-re-evaluate-e-travel-contract-award?odyssey=tab|topnews|text|FRONTPAGE

COFC and GAO are at loggerheads, again.

We have too many lawyers involved in too many issues in too many fora. With the reduction of work for lawyers, I suspect the loggerheads are going to proliferate.

I wonder if OFPP will attempt to limit jurisdiction for Bid Protests to either the GAO or COFC?

[brian]

there are some differences in the two fora. For example, a GAO protest draws an automatic stay.

If all the advantages to protestors of a GAO Protest are migrated to the COFC Protest forum, through a change in the Tucker Act, which provides the authority to the Court to hear such protests, then I'm all for it.

A pro se Protestor can file a protest for the cost of a first class stamp, or an email.

To file a Claim with the Court of Federal Claims, it costs at least $350, generally more. This might get the Military/ Industrial/ Congressional Complex denizens to tone down the shrill cries of "frivolous."

An Agency Level protest is little more than an expression of dissatisfaction, with no hope of either corrective action or justice.

A GAO Protest is at a step above that, where Agencies often / sometimes acknowedge errors and take corrective actions, because the requirement to prepare an Agency Report usually gets someone from the Agency but outside the circled wagons of the contracting office - an attorney - to look at the facts without trying to rationalize anything. The chances of a GAO attorney giving fair consideration to the merits of a Protest still aren't that great.

But at the level of the COFC, that's when the possibility opens up for someone who isn't invested in showing the Government is never wrong to look at the facts objectively.

Most GAO Protests contain at least a hint of an allegation of bad faith on the part of the Government. There's a lot of history behind the standard of "well nigh irrefragable," but the actual level of corruption in government contrcting offices does not support it. It ought to be a "preponderance" standard.

Maybe the consolidation into one forum can fix that, too.

[wvanpup]

How a successful COFC protest after an unsuccessful GAO protest merits a round of lawyer bashing is beyond me. I guess what you think depends on where you sit.

The number of protests dismissed because they do not present an issue within the GAO's jurisdiction is too high. The number of protests where an offeror simply disagrees with the contracting officer's evaluation is too high. The number of other protests that are a sheer waste of time is too high. It is these protests, not those that raise legitimate issues (whether the protest is denied or sustained) that cause the hue and cry about frivilous protests.

Most Government contracting officers and lawyers I know rant about the pro contractor slant to the GAO, which seems kind of at odds with the chances of a GAO attorney giving fair consideration to a protest being not that great.

As for claims of bad faith, in the 2012 and 2013 decisions to date, there were 22 protests that used the phrase bad faith, and none that had the word nigh, as in well nigh irrefragable. The truth is that very few, as opposed to most, GAO cases have allegations of bad faith because the vast majority of Government contracting personnel are honest and hard working. The actual level of corruption in government contracting is not so high that allegations of fraud should be sustained by a preponderance of the evidence; clear and convincing (the equivalent of well-nigh irrefragable) is a sufficient standard.

I do not know, though I should, the standard used by COFC when reviewing an issue that was the subject of a GAO protest decision. IMHO there should not be a de novo review, and the COFC action should function as an appeal of the GAO decision rather than a retrial. Contractor's should be able to choose either the red apple at COFC or the green apple of the GAO, but whichever they appeal they only get one bite (subject to appeal).

[Guest Vern Edwards]

The GAO and the COFC decide protests based on different standards of review. The COFC absolutely should not act as a court of appeal in re GAO decisions, for constitutional, statutory, and practical reasons. Congress should prohibit filing in one forum and then filing in another. A protester should be required to choose one forum and live with the outcome, with no forum switching or second bites at the apple (GAO first, then COFC if they lose). That nonsense does not serve the interests of the taxpayers. Ideally, the COFC should be cut out of the protest business altogether.

The purpose of the protest system is to ensure that government personnel obey the law when conducting procurements. The system is not intended to secure justice for losing offerors. There is no constitutional right to a government contract.

[wvanpup]

Vern said: "The GAO and the COFC decide protests based on different standards of review. The COFC absolutely should not act as a court of appeal in re GAO decisions, for constitutional, statutory, and practical reasons. Congress should prohibit filing in one forum and then filing in another. A protester should be required to choose one forum and live with the outcome, with no forum switching or second bites at the apple (GAO first, then COFC if they lose). That nonsense does not serve the interests of the taxpayers. Ideally, the COFC should be cut out of the protest business altogether.

"The purpose of the protest system is to ensure that government personnel obey the law when conducting procurements. The system is not intended to secure justice for losing offerors. There is no constitutional right to a government contract." (emphasis added)

Vern: I agree with the one forum concept. We do it under the CDA, where a contractor can choose a Board of Contract Appeals or the COFC but not both. When you say "and live with the outcome," are you saying that there should be no judicial review? Should the GAO decision be final, or should it be appealable to the Fed Circuit (or whatever other forum is appropriate)? If the GAO decision is final, what about a COFC decision?

My choice is to make the decision appealable, whether at GAO or COFC, as long as it is clear that the appeal is not de novo.

[bob7947]

I spend much of my evenings trying to find something of value to post from published bid protests from GAO, COFC, and CAFC--and they are the ones that make it that far. Unfortunately, most of the protests are little more than whining by a disappointed offeror.

Offerors should not attempt a protest unless they have an independent party evaluating the merits of the concern before they send it on to a practicing protest attorney. It would save them a lot of money. Probably a good lesson in timeliness would save much more. Maybe they should check the Wifcon.com section on bias too.

Instead, they let anger and frustration get the best of them and then have someone file a protest. Perhaps they think they are making a point with the awarding agency. I doubt if they are.

Let's look at GAO's statistics. Of the protests filed with GAO in 2012, about 23 percent actually made it to a merit decison--denied or sustained. Of the protests that were filed, about 4 percent were sustained. That means that the losing offeror might get the agency to shuffle a bit more paper before losing again. Maybe the losing offeror gets another shot at discussions, maybe the losing offeror gets a chance to send the SSA an obscene hand gesture in person, but rarely do they get a shot at winning a new procurement caused by the protest.

At GAO, they have a section of its General Counsel dedicated to bid protests. They even issue annual statistics. Some of the GAO bid protest attorneys have been there for years, if not decades. The best are/were similar to walking encyclopedias on protests. GAO's bid protest group is a factory--in one end comes the raw material, waste is discarded, and at the other end a tightly written decision is issued. In one end and out the other. Henry Ford would marvel at it.

Then you have the COFC. If a protester is really angry and has deeper pockets, it can protest to COFC. A shot at 2 birds--awarding agency and maybe GAO--with one stone. There is no "bid protest production line" at the COFC. It is specialty work. Usually the format of decisions may be different, although they appear to be more uniform than in the past. Of course, some judges have the gift of blab and you must do some deep wading before finding a nugget of information.

Anyway, keep the agency level protest and have GAO's bid protest production line act as an appeal function of the agency decisions. Get the COFC and the CAFC out of the protest game.

[wvanpup]

Bob, I hope you can find more fruitful ways to spend your evenings.

There is a category of GAO protests that you do not consider in your post. The 4% sustained number does not seem to factor in the protests that are dismissed because the agency takes corrective action. (I realize it does not necessarily reflect the number of protests that would be sustained; it is not uncommon to take corrective action to address the issue raised rather than fight to have the initial decision vindicated, regardless of the merits of the protest.) I do not know the number, but it is at least higher than inconsequential.

[napolik]

Bob, I hope you can find more fruitful ways to spend your evenings.

There is a category of GAO protests that you do not consider in your post. The 4% sustained number does not seem to factor in the protests that are dismissed because the agency takes corrective action. (I realize it does not necessarily reflect the number of protests that would be sustained; it is not uncommon to take corrective action to address the issue raised rather than fight to have the initial decision vindicated, regardless of the merits of the protest.) I do not know the number, but it is at least higher than inconsequential.

I believe that Bob has provided the information here: http://www.wifcon.co...estsgaostat.htm.

It appears that the protest "effectiveness rate" is 42%. The definition of "effectiveness rate" is seen in footnote 3: "Based on a protester obtaining some form of relief from the agency, as reported to GAO."

[brian]

...

Anyway, keep the agency level protest ....

Bob,

have you ever come across an Agency Protest that was upheld ?

I've heard that it happens, regularly, but can't think of one right now.

[brian]

I find it interesting that government folks like GAO and dislike COFC.

Does that suggest anything to you ? It does to me.

And Bob, as for your factory,

Yugos were produced in a factory.

[Guest Vern Edwards]

Vern: I agree with the one forum concept. We do it under the CDA, where a contractor can choose a Board of Contract Appeals or the COFC but not both. When you say "and live with the outcome," are you saying that there should be no judicial review? Should the GAO decision be final, or should it be appealable to the Fed Circuit (or whatever other forum is appropriate)? If the GAO decision is final, what about a COFC decision?

Yes, I'm saying no judicial review. The GAO should be the only protest forum, and a GAO decision should not be subject to court appeal. The purpose of the protest system is to ensure compliance with statute or regulation. The GAO can do that as well or better than the courts and at less expense to everyone. Offerors have no right to a government contract that courts need to protect. If GAO sustains a protest and the agency rejects the GAO decision and recommendation, GAO reports it to Congress, and Congress can decide whether to do anything and what if anything to do. That is good enough, and good enough is in the best interests of the taxpayers. Letting protesters file with the GAO, then go to the COFC if they lose at the GAO, and then go to the Federal Circuit if they lose at the COFC is stupid, plain and simple.

[brian]

Letting protesters file with the GAO, then go to the COFC if they lose at the GAO, and then go to the Federal Circuit if they lose at the COFC is stupid, plain and simple.

Thnx 4 the tip, Vern.

I didn't realize I could go to the Federal Circuit after I lose at COFC.

I think I'll try that, next time I lose at COFC, which could be next week.