Category: Bid Remedies/Protests

International Public Procurement Conference 9: Umm Al Quwain, UAE

Photo: Umm Al Quwain – Rainer Strehl

David Drabkin and Christopher Yukins presented on October 3, 2024 at the International Public Procurement Conference 9, a regular event which was held this year in the emirate of Umm Al Quwain in the United Arab Emirates. (Because of a surge in armed hostilities in the Gulf, they presented virtually.) Messrs. Drabkin and Yukins discussed the congressionally mandated reports they did on bid protests and mandatory debarment for labor violations, through Stevens Institute of Technology’s Acquisition Innovation Research Center; those studies, they explained, are examples of how, as the OECD has noted, public procurement can be seen more broadly as a form of risk management.

ABA Bid Protest Committee Meeting – Agency Bid Protests

Tuesday, March 19, 2024 | 12:00 pm – 1:30 pm ET

Venue: Miles & Stockbridge, P.C., 1201 Pennsylvania Avenue, N.W., 9th Floor, Washington, DC 20004

This is a hybrid in-person/remote event.  Register here for In-Person or Zoom Attendance

Please join the American Bar Association (ABA) Section of Public Contract Law’s Bid Protest Committee for our March 2024 meeting on “Agency-Level Protests.”  Topics include:

  • Executive Order 12979 and the history of agency-level protests;
  • Factors to consider when deciding whether to bring an agency-level protest;
  • Jurisdictional and standing issues affecting agency-level protests;
  • Where and when to file an agency-level protest;
  • What happens to the contract award while an agency-level protest is pending;
  • What, if anything, the protester is provided in terms of an administrative record; and
  • How agency-level protests are decided and reported.

We hope that you can join us for this highly informative presentation.  Lunch will be provided for those who RSVP for in-person attendance.  Government personnel will have the option to pay $10 for lunch.

Panelists:

  • Christopher Yukins, Lynn David Research Professor in Government Procurement Law, GW Law (author, ACUS report on proposed agency-level protest reforms, and AIRC congressionally mandated report on DoD bid protests)
  • Scott Flesch, Member, Miller & Chevalier Chartered
  • Lt. Col. Bruce Mayeaux, U.S. Army, Deputy Chief Contract & Fiscal Actions Division
  • Rachel Park, Integrity Officer, Office of the U.S. General Services Administration Suspension & Debarment Official and Agency Protest Official

Rethinking Bid Protests — International Webinar and Article

Join an hourlong webinar on Tuesday, June 15, 2021, 9 am ET / 14:00 UK / 15:00 CET to discuss next steps in bid challenges internationally. The free session, sponsored by GW Law School and King’s College, London, will feature leading experts in procurement from three continents: Europe, Africa and North America. Among other global developments, the panel will discuss a pending congressionally mandated study of bid protests at the U.S. Department of Defense — a study, Chris Yukins argued in a recent essay in the University of Pennsylvania’s Regulatory Review, that should recognize that governments increasingly look to bid challenges for early warnings of failure in a procurement system.

CLICK FOR WEBINAR INFORMATION

Senate Report on National Defense Authorization Act Calls for DoD Study on Agency-Level Bid Protests

The Senate Armed Services Committee report to accompany the pending National Defense Authorization Act (NDAA) for Fiscal Year 2021, Senate Report No. 116-236, calls for a Defense Department report on agency-level bid protests. This follows on the Administrative Conference of the United States project (supporting materials on this website) to study agency-level bid protests. Both the House (H.R. 6395) and Senate (S. 4049) versions of the pending NDAA have passed, and the legislation will now likely proceed to conference to reconcile the two bills.

The Senate report states:

Repeal of pilot program on payment of costs for denied Government Accountability Office bid protests (sec. 846)

    The committee recommends a provision that would repealsection 827 of the National Defense Authorization Act for Fiscal Year 2018 (Public Law 115-91), which required the Secretary of Defense to carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense (DOD) for costs incurred in processing covered protests. The committee finds that the pilot program is unlikely to result in improvements to the bid protest process given the small number of bid protests captured by the pilot criteria and lack of cost data.

   The committee continues to support efforts to improve the handling of bid protests. In support of such efforts, the committee directs the Secretary of Defense to undertake a study of the processes for agency-level bid protests. The study should evaluate the following for agency-level bid protests:prevalence, timeliness, outcomes, availability, and reliability of data on protest activities; consistency of protest processes among the military services; and any other challenges tha affect the expediency of such protest processes. In doing so, the study should review existing law, the Federal Acquisition Regulation, and agency policies and procedures and solicit input from across the DOD and industry stakeholders. The study should also include recommendations to improve the expediency, timeliness, transparency, and consistency of agency-level bid protests.

Not later than September 1, 2021, the Secretary of Defense shall provide the congressional defense committees with a report detailing the results and recommendations of the study, together with such comments as the Secretary determines appropriate.

Request Denied by GAO for Documents in Pending Protest Regarding GSA “Electronic Marketplaces” Procurement

On January 15, 2020, Overstock.com, Inc., a competitor in the pending U.S. General Services Administration (GSA) procurement for “electronic marketplaces” reportedly protested the reissued (and revised) solicitation at the U.S. Government Accountability Office. Per GAO’s rules on the public availability of records, 4 Code of Federal Regulations (CFR) Part 81, Professor Yukins submitted a formal request to GAO for electronic versions of the redacted materials filed in the referenced pending bid protest (attached).  These records were requested so that information and analysis regarding the subject procurement – a multi-billion dollar procurement to open commercial electronic marketplaces to federal users – can be made available to the public.  If these records are not released, key information on this major procurement may be blocked from the public for roughly three months – the 100-day period for a GAO bid protest to be decided.

On January 22, 2020, GAO denied the request, saying that it is estimated that the documents will not be available until the proceedings are concluded, projected to be on or about April 24, 2020, over three months later. In practical terms, this means that the thousands of vendors and customers which need to prepare for the new electronic markets to be opened by GSA’s procurement may need to wait months for information on the ongoing procurement and protest — even though that information (because redacted) is otherwise publicly releasable.

Roger Waldron, Coalition for Government Procurement

Editor’s Note: On January 24, 2020, the Federal News Network published an op-ed by Roger Waldron of the Coalition for Government Procurement which concluded: “. . . there are broad implications for the procurement system associated with the e-Marketplace acquisition, and those implications extend into other areas of importance, like supply chain security, socioeconomic programs, and the protection of proprietary data. Yukins is right. Absent the release of these [GAO protest] records, ‘key information on this major procurement may be blocked from the public for roughly three months – the 100-day period for a GAO bid protest to be decided.’ So too, from the perspective of Coalition members, it highlights that more review and reflection on the acquisition is needed. “

Request for Documents- 20 Jan 2020Download
GAO Acknowledgement – 21 Jan 2020Download
GAO Denial of Request – 22 Jan 2020Download

Colette Langos Speaks on Australian Bid Challenge Developments

On February 20, 2019, Dr. Colette Langos, a Senior Lecturer at the University of Adelaide, made a very interesting presentation at GWU Law School, on developments in Australia’s bid protest procedures. She explained that these latest reforms, outlined in her attached slides, were an important part of Australia’s accession to the WTO Government Procurement Agreement.

Colette Langos
LANGOS Developments in Federal Procurement – Australian complaints mechanismDownload

Congressional Research Service: Good Introduction to U.S. Federal Bid Protests

The Congressional Research Service, a research arm of the Library of Congress, has published a very useful overview of the U.S. bid protest (bid challenge) system, by David Carpenter & Moshe Schwartz, Government Contract Bid Protests: Analysis of Legal Processes and Recent Developments (Updated November 28, 2018, CRS Report R45080), https://fas.org/sgp/crs/misc/R45080.pdf