Category: Bid Remedies/Protests

Updating the World Bank’s Bidder Complaints Process To Meet International Best Practices

This article notes that, although the World Bank overhauled its procurement framework a decade ago, its bidder complaints process – an integral part of that framework – has not been updated to meet international best practices. The current process for bidder complaints affords relatively little transparency and accountability, and has been criticized (including by the U.S. Government Accountability Office) for failing to provide disappointed bidders an effective means of challenging failures in a procurement process. Reforming the Bank’s complaints process could be done by aligning it with international best practices, using (among other things) the benchmarks suggested by the Methodology for Assessment of Procurement Systems (MAPS), which was developed with the support of the World Bank and the Organisation for Economic Co-Operation and Development (OECD) and which is regularly relied upon by the Bank. The complaints processes established by two other multilateral development banks, the European Bank for Reconstruction and Development (EBRD) and the European Investment Bank (EIB), also offer important benchmarks for reform. By updating its bid complaints process to meet international best practices, the World Bank could better ensure robust competition in the procurements it funds, bring to light more procurement failures for correction, and reinforce international confidence in the Bank’s important work.

The article was written by Christopher Yukins, George Washington University Law School and Eli Whitney Debevoise II, a partner at the law firm of Arnold & Porter and previously U.S. Executive Director of the World Bank.

The article concludes by noting that the Bank’s 2015–2016 reform of its procurement framework and bid complaints processes marked a critical step in improving the Bank’s overall procurement procedures. The reform signaled a clear shift in the Bank’s approach to funded procurement. But the reform of the Bank’s procurement framework was only the first step—additional steps, including improvements to the Bank’s complaints process, will be needed to make the Bank’s procurement framework as strong as possible. To align the Bank’s bid complaints process with international best practices, the article notes that the Bank may wish to consider the following reforms:

  • Independent Review: Allow a vendor independent review (by appeal or otherwise) before an independent body (perhaps within the Bank itself, as the EIB and EBRD do) or a court – not just review by the purchasing agency, which may have serious conflicts of interest when asked to review its own actions.
  • Access to the Administrative Record: Afford vendors access to the administrative record, to allow a fair assessment of the claimed agency errors.
  • Set Deadlines: Apply fixed timelines for decision to avoid unnecessary delay, both to the project and to the parties involved.
  • Transparent Process: Afford transparency in the Bank’s review of the complaints process, to ensure the confidence of the complaining party – and the public – in the process.
  • Publish Decisions: Ensure that decisions on bidder complaints are made in writing upon reasoned grounds and an available record, and made publicly, to reinforce public confidence in the Bank’s (and the borrowers’) decisions, and to provide guidance for future procurements.

These reforms could help make the Bank’s complaints process more reliable and so encourage competition in Bank-financed projects, improve procurement outcomes and reinforce public confidence in procurement done with World Bank financing.

This article was published in the Swedish Procurement Law Journal, Upphandlingsrättslig Tidskrift, edited by Andrea Sundstrand at Stockholm University.

Citation: Christopher Yukins & Eli Whitney Debevoise II, Updating the World Bank’s Bidder Complaints Process To Meet International Best Practices, UrT 2026 p. 49, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7642798.

Bid Protest Reform — GW Law Webinar and Article

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.

GW Law Webinar: U.S. Bid Protests — Progress and Reform

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:

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Public Procurement Law Review Special Edition: International Trade

Luke Butler

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.

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Robert Anderson

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.”

Jean Heilman Grier

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.”

Derek McKee

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.

Daniel Schoeni

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.”

Christopher Yukins

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.

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.

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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