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bob7947

Bid Protests: GAO or the Courts

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3 hours ago, PepeTheFrog said:

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

Fashioned after the "Vaccine Court", maybe?

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

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Jurisdiction

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

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

What is the scope of the court’s jurisdiction?

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

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

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

The above jurisdictions are not going away.  

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

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

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

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Guest Vern Edwards

@sdvr

Very interesting observation. Worthy of further research.

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

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§ 21.6 Withholding of award and suspension of contract performance.

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

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

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

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Guest Vern Edwards

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

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sdvr:

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

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

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

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

 

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

 

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

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