Congress is taking up various proposals for bid protest reform, the focus of a GW Law September 9, 2025 webinar (registration) and the article below from the Government Contractor.
The article, Bid Protests in the U.S. Procurement System: Assessing Proposed Reforms — Part I, reviewed some of the key reform proposals for the September 9 webinar:
The Public Procurement Law Review (Sweet & Maxwell / UK), edited by Professor Luke Butler and his colleagues at the University of Nottingham, has published a special issue focused on international trade and procurement.
Four of the pieces from the special issue, discussed below, are available on the Social Sciences Research Network (ssrn.com) and below.
In their introductory editorial, “Procurement Trade Agreements and Their Discontents,” Robert Anderson (Honorary Professor at the University of Nottingham School of Law, and Senior Fellow, Competition and Innovation Lab, The George Washington University, and former team lead at the WTO on the Government Procurement Agreement) and Christopher Yukins (GW Law) put the accompanying articles into context. They noted that the GPA, as the premier trade agreement, “is currently under an unprecedented degree of scrutiny on the part of one of its founding Parties, . . . the United States,” which calls for a “spirited defence . . . of the GPA and other trade agreements embodying government procurement commitments and their contribution to international governance and prosperity.”
In her piece, “Expansion of International Procurement Commitments: WTO Procurement Agreement Versus Free Trade Agreements,” Jean Heilman Grier (Djaghe, LLC) (the author of The International Procurement System, a leading volume on the United States and international public procurement trade), argued that the large numbers of nations that have committed to open their government government markets to foreign suppliers “reflects the important role that government procurement plays in international trade.” She noted that while “the GPA will continue to add new members—albeit slowly, [free trade agreements (FTAs)] will provide the principal expansion of international procurement commitments, as they encompass both GPA parties and those outside the plurilateral agreement.” Although the GPA’s membership “may be outpaced by FTAs” which she described in detail, Jean Grier wrote that the GPA “will continue to serve as the international gold standard for government procurement provisions and the foundation for procurement rules across the globe.” She cautioned, though, that the “potential spoiler is the United States with President Trump’s America First trade policy undermining existing agreements and threatening withdrawal from the GPA and even the WTO.”
In their piece on bid protests and the trade agreements, “The GPA’s Domestic Review Procedures Through the Lens of North American Sub-Central Implementation: Flexibility or Incoherence?,” Derek McKee (Faculté de droit, Université de Montréal) and Daniel Schoeni (University of Dayton) noted that although the GPA “requires parties to give foreign suppliers access to independent and impartial fora where they can challenge public procurement decisions,” many U.S. states and Canadian provinces — though both countries are members of the GPA “have domestic review procedures that comply with some, but not all,” of the GPA’s requirements. They place part of the blame on ambiguities in Article XVIII of the GPA, and provide examples of North American sub-central review systems that embody these ambiguities.
The final piece, “An Empirical Study of Bid Protests by Disappointed Tenderers in US States,” by Daniel Schoeni (University of Dayton), was an extension of Professor Schoeni’s doctoral research at the University of Nottingham. In it, he reported on data he gathered on bid protests (challenges) in the states, and noted that bid protests are “at least as common at the state level as at the federal level.” Knowing that — that protests are a commonly available remedy for uncompetitive discrimination at the state level — could, Professor Schoeni noted, “foster confidence among foreign suppliers and thus encourage greater participation from abroad.”
Editor’s note: The pieces shared here were first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in 34 Pub. Proc. Law Rev., No. 4 (2025), and are reproduced by agreement with the publishers. For further details, please see the publishers’ website.
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.
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:
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:
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.
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.
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.
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. “
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.
