This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In May 2018, the U.S. Government Accountability Office (GAO) released the tenth edition of Bid Protests at the GAO: A Descriptive Guide, wherein the GAO’s long-standing role as an adjudicative forum for bid protests is explained:
The laws and regulations that govern contracting with the federal government are designed to ensure that federal procurements are conducted fairly. On occasion, bidders or others interested in government procurements may have reason to believe that a contract has been, or is about to be, awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract. A major avenue of relief for those concerned about the propriety of an award has been the Government Accountability Office, which has historically provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts. In fact, the first bid protest decision was published by GAO in 1926.
A bid protest is an adjudicative process; it is not an audit conducted by one of GAO’s audit teams in accordance with generally accepted government auditing standards. Moreover, unlike GAO audit reports, a GAO bid protest decision does not address broad programmatic issues, such as whether a weapons program is being managed effectively and within cost, nor does a GAO bid protest decision evaluate which company’s proposal is better.
As the GAO bid protest guide explains, its mandate is to provide an accessible bid protest forum to federal bidders:
For more than 90 years, GAO has provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts. Over the years, the decisions of the Comptroller General of the United States, the head of GAO, in bid protest cases have resulted in a uniform body of law applicable to the procurement process upon which the Congress, the courts, agencies, and the public rely. Although protesters may be represented by counsel, filing a bid protest with GAO is easy and inexpensive and does not require the services of an attorney. In addition, matters can usually be resolved more quickly by protests filed with GAO than by court litigation.
Further, the guide outlines how, in response to a bid protest, government agencies are required to file their response with the GAO in the form of agency reports:
Agency Report
Within 30 days after an agency receives notice of a protest from GAO, the agency is required to file a complete written report responding to the protest, including all relevant documents, or portions of documents, and an explanation of the agency’s position. 4 C.F.R. § 21.3(c). The report generally will include a statement of the relevant facts (and a best estimate of the contract value) signed by the contracting officer, a memorandum of law explaining the agency’s position in terms of procurement law, a statement regarding whether a statutory stay or suspension of contract performance is in place, and a list and copies of all relevant documents, or portions of documents, not previously furnished (e.g., as appropriate, the bid or proposal of the protester; the bid or proposal of the firm which is being considered for award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including specifications; the abstract of bids or proposals; and any other relevant documents). 4 C.F.R. § 21.3(d).
As the guide highlights, when compared to formal court-based litigation, the GAO offers a relatively informal bid protest forum to challenge government tendering practices:
At the request of a party or on its own initiative, GAO may conduct a hearing in person, by telephone, or by video conference where it concludes that the protest cannot be resolved on the basis of the written record alone. 4 C.F.R. § 21.7(a), (c). Hearings are usually conducted at GAO’s headquarters in Washington, D.C. Because hearings increase the costs and burdens of protests, GAO holds hearings only when necessary. A request for a hearing should explain why a hearing is necessary to resolve the protest, and point out, for example, factual and legal questions that GAO must consider in order to decide the protest. 4 C.F.R. §§ 21.1(d)(3), 21.7(a). GAO has issued a number of decisions that discuss reasons for holding hearings. While the regulations do not establish a deadline for requesting a hearing, such a request should be submitted as early as possible in the protest process in order to avoid unnecessary delays and disruptions. Parties should also be aware that GAO may determine shortly after a protest is filed whether the case is one in which a hearing appears likely to be appropriate. On the other hand, the appropriateness of a hearing often is not clear until after the agency has filed its report and, in many cases, is not clear until after the protester has submitted its comments on the report. GAO may decide at these later times that a hearing is necessary to resolve the protest.
In cases where GAO decides to hold a hearing, it will generally conduct a pre-hearing conference with all parties. 4 C.F.R. § 21.7(b). The purpose of that conference is to review the scope of the hearing, identify the appropriate witnesses and their availability, establish the date and location of the hearing, and discuss other logistical and procedural matters. In cases where GAO determines that only some of the protest issues require a hearing, it will generally limit the hearing to those issues. The GAO attorney handling the protest will conduct both the pre-hearing conference and the hearing. The format of hearings varies from formal (direct- and cross-examination of witnesses conducted by counsel for the parties) to informal (a discussion of the issues by counsel and others). For this reason, the pre-hearing conference is usually the best opportunity to clarify how the GAO attorney expects to conduct the hearing, as well as to raise any other questions about the hearing.
The guide also notes that GAO hearings are typically not conducted in public due to confidentiality issues relating to supplier information, but that its proceedings are recorded:
A GAO hearing is, in principle, open to the public. In practice, however, protest hearings often involve protected information. As a result, most hearings are closed, except to agency personnel and those individuals admitted under the protective order. 4 C.F.R. § 21.7(d).
At least 24 hours prior to the hearing, parties must advise GAO of those individuals expected to attend the hearing so that these individuals may gain access to the GAO building where the hearing room is located.
The GAO hearing room is equipped with video cameras and microphones, which automatically record the proceedings. That system produces a video or electronic transcript, a copy of which is provided to the parties at no charge at the conclusion of the hearing. In addition, parties may wish to have a court reporter attend the hearing to prepare a written transcript. A request to that effect should be presented before the day of the hearing to the GAO attorney handling the protest. Such a request will usually be granted as long as all parties will have access to a written transcript. If the parties wish to have a hearing transcribed, they may do so at their own expense, and must provide a copy of the transcript to GAO at the parties’ expense. 4 C.F.R. § 21.7(e). Where a hearing is held by electronic means, such as by telephone or video teleconferencing, the parties and GAO will determine beforehand the manner in which the hearing will be recorded.
If a hearing is held, all parties, including the agency, will be permitted to file written comments on the hearing. 4 C.F.R. § 21.7(g). Those comments are due 5 days after the hearing ends, unless GAO sets a different date. Id. Hearings generally are held after receipt of comments on the agency report.
The guide further confirms that GAO decisions are released on an accelerated timeframe:
Decision Timetable
Once the record is complete, GAO will consider the protest and decide the case through a written decision issued by the Comptroller General. At the latest, the decision will be issued 100 days after the protest is filed, unless GAO decides the case under the 65-day express option schedule. 4 C.F.R. § 21.9(a), (b). If a protester has filed a timely supplemental protest or a timely amended protest, GAO will endeavor to resolve the supplemental/amended protest within the 100-day time frame for a decision on the initial protest. 4 C.F.R. § 21.9(c). If that is not feasible, GAO may consider using the express option schedule or other accelerated schedule for the resolution of the supplemental/amended protest. Id.; 4 C.F.R. § 21.10(e).
As the GAO bid protest guide illustrates, GAO bid protest proceedings provide an accessible avenue to challenge US federal government contract award decisions, while also serving as a useful model for other institutions that are looking to strike the right balance between the accountability of government tendering procedures and the need to expeditiously resolve resulting bid disputes.
