The Committee on Administration and Management recently approved a series of draft recommendations to agencies that aim to improve agency-level government contract bid protests by making them simpler, more transparent, and more predictable.
Federal law establishes policies and procedures governing how executive-branch agencies procure goods and services. If a vendor believes an agency has not complied with the law or the terms of a solicitation, it may file a written objection, called a bid protest, to the agency’s conduct.
Vendors can file bid protests in any of three forums: the Court of Federal Claims (COFC), the Government Accountability Office (GAO), and the procuring agency. Agency-level protests can be a boon to agencies, vendors, and the public. Done right, they provide vendors an opportunity to inexpensively, informally, and expeditiously resolve bid protests. They also give agencies the chance to review and improve their own procurement practices and funnel some protests away from COFC and GAO, reducing the likelihood that bid protests will overwhelm those institutions.
But many vendors mistrust agency-level protests, viewing them as biased, opaque, unpredictable, or pointless. That often leads vendors to pursue bid protests in other forums, which diminishes the potential value of agency-level protest systems.
The Committee’s draft recommendation, titled Government Contract Bid Protests Before Agencies, seeks to improve agency-level protest processes by making them simpler, more transparent, and more predictable, with the ultimate goal of encouraging vendors to make greater use of them. The recommendations cover topics like who within an agency should adjudicate an agency-level protest, the timelines and procedures that should apply to such protests, and ways for agencies to publish more data about their handling of agency-level protests.
The Committee’s consideration was supported by research by Christopher Yukins, Lynn David Research Professor in Government Procurement Law and Co-Director of the Government Procurement Law Program at The George Washington University Law School.
If placed on the agenda by the Council, the full Assembly will discuss and vote on the Recommendation during the Conference’s 73rd plenary session in December.