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Domestic Review Mechanisms in Public Procurement January 17, 2003. Professor Steven L. Schooner George Washington University Washington, D.C., USA www.law.gwu.edu/facweb/sschooner sschooner@law.gwu.edu. Domestic Review Mechanisms.

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domestic review mechanisms in public procurement january 17 2003

Domestic Review Mechanismsin Public ProcurementJanuary 17, 2003

Professor Steven L. Schooner

George Washington University

Washington, D.C., USA

www.law.gwu.edu/facweb/sschooner

sschooner@law.gwu.edu

domestic review mechanisms

Domestic Review Mechanisms

Permit (both domestic and foreign) potential offerors (such as bidders) and disappointed offerors (contractors that compete unsuccessfully for the award of a contract) the opportunity to seek correction of anomalies or inequities in the contractor selection process.

considerations
Considerations
  • Why invest in challenge mechanisms?
  • What do they do?
  • Who resolves challenges?
  • How are challenges resolved?
desiderata goals constraints
Desiderata, Goals, Constraints?
  • Transparency
  • Integrity
  • Competition
  • Uniformity
  • Risk Avoidance
  • Wealth Distribution(*)
  • Best value
  • Efficiency (administrative)
  • Customer Satisfaction

Traditional?

Transitional?

Current?

challenge regime aspirations
Challenge Regime: Aspirations
  • Synergy with other aspirations for procurement system (transparency, competition, integrity…..)
  • Public Trust (non-economic issue)
  • Credibility with both domestic and international communities
  • Minimum standards for GPA Article XX (Challenge Procedures)
protests and disputes
Solicitation defects

Pre-award and Post-award

Multiple parties

Contractor selection process

Disappointed offeror litigation

Post-award

Contracting Parties

Contract Performance &/or Administration

Contract interpretation

Remedy granting clauses

Different rules/fora

Protests and Disputes
why bid challenges or protests

Why Bid Challenges or Protests?

Partial Delegation of the Oversight Regime -- delegation by Government to Contractor Community

private attorneys general third party external oversight
“Private Attorneys General”(Third-Party/ External Oversight)

Conventional Procurement Oversight: Managers, Auditors, Inspectors General

Supplemental Oversight:

  • Protests
  • Disputes
  • Fraud (whistle-blowers)
  • Media (Investigative Reporting)

$$$?

people culture norms
People, Culture, Norms
  • Perception of Rule of Law
    • Commitment to due process
  • Respect for Courts, Judges, Administrative Tribunals
  • Willingness to Litigate
    • avoid “bite the hand…” instinct
    • difficult hurdle (public confidence)
what do protests challenge
What do protests challenge?
  • Pre-award
    • Lack of notice of solicitation
    • Overly restrictive solicitation
    • Ambiguous specifications
    • Exclusion from competition (interim)
  • Post-award
    • Did not receive contract
    • Improper application of evaluation criteria
    • Anything learned during debriefing(***)
what are remedies
What are remedies?
  • the stay or suspension
  • re-solicit, re-compete
  • issue new solicitation
  • terminate awarded contract (T/C)
  • direct award
  • bid and proposal (B&P) costs
  • attorney’s fees
  • re-open negotiations; re-evaluate offers
  • refrain from exercising option
  • lost profits?
lessons from the us model
Lessons from the US model?
  • Large, developed, complicated procurement regime
  • Broad industrial base
  • Generally open to foreign contractors
  • Fully evolved judicial regime
  • (Relatively) litigious culture
election of forum
Election of Forum
  • no exhaustion requirement
  • no entry fee (or nominal fee)
  • Three (3) options – too many?
  • Agency
  • Administrative (quasi-judicial)
  • Judicial
three options
Three Options
  • Individual Purchasing Agencies
  • General Accounting Office (administrative)
  • Judicial (Civil)

U.S. Court of Federal Claims

agency protests
Agency Protests
  • Long, unimpressive history
    • Constant efforts to reform
  • Most “efficient” (inexpensive) forum
  • Obvious problem = objectivity
administrative protests most popular option

Administrative Protests(most popular option)

U.S. General Accounting Office (GAO)

Unique forum

(legislative instrumentality)

gao s role in government procurement
GAO's role in government procurement
  • Pre-award: ensure that agencies have not improperly restricted competition
  • Award: ensure that the selection was reasonable and consistent with the solicitation criteria
  • Post-award: does not consider challenges to contract administration
  • Audit: all phases
bid protests at gao
Bid Protests at GAO
  • function began in 1920s; codified in 1984 Competition in Contracting Act (CICA)
  • mandate: independent, expeditious, and inexpensive resolution of protests
  • decisions establish a uniform body of law relied on by Congress, the courts, contracting agencies, and the public
  • Familiar rules -- 4 CFR 21
gao strives for balance
GAO strives for balance…

need to hold agencies accountable and protect aggrieved offerors' due process rights

…and…

need to ensure that the government procurement process can proceed without undue disruption

general accounting office
General Accounting Office
  • Automatic Stay -- 37 cent injunction (letter, plus price of a stamp)
  • Huge body of precedent
  • Agency Report
  • Sufficient, but limited, process
    • discovery
    • hearings (live witnesses)
    • counsel = optional (but typical)
judicial option
Judicial Option
  • U.S. Court of Federal Claims
    • In Washington, D.C.
      • Willing to travel (but impractical)
    • High burden for temporary restraining order (TRO) or preliminary injunction (PI) versus automatic stay
      • “likelihood of success on merits”
    • Low volume - Not a forum of choice
a robust challenge regime supports key elements of the procurement process
A Robust Challenge Regime Supports Key Elements of the Procurement Process
  • Transparency
  • Integrity
  • Competition
  • Uniformity
  • Best Value
  • Efficiency