Webinar – Bid Challenges: International Perspectives (June 15, 2021)

https://youtu.be/0Vrz2k74X78

TueSDAY, June 15, 2021 – 9:00 Eastern US, 14:00 UK, 15:00 CET

Since the first bid protest decision at the U.S. Government Accounting Office (GAO) in 1926, bid challenges — now a part of the UN Convention Against Corruption — have spread around the world to become critical parts of most procurement systems.  In an important study underway this summer, the United States will be assessing a basic question in bid challenges: their purpose. Are bid challenge procedures intended to remedy harms to bidders, or are they early-warning systems intended to make the public procurement system work better? 

Join a free hourlong webinar, jointly sponsored by King’s College, London and George Washington University Law School, and kindly co-hosted by the Public Procurement Research Group at the University of Nottingham, at which leading procurement lawyers and academics from around the world will join to discuss these basic questions:  

1. What is the purpose of bid challenges?  How have they evolved?
2. Who should be able to bring challenges — and why?  
3. How often do bid challenges arise? Are they disruptive? Expensive?
4. And if bid challenges are to reduce risks of corruption and mistakes in public procurement, how should they be structured and handled?

Panelists

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Biographies

Kristina Arcara, one of our program coordinators, is an associate general counsel with Battelle (Columbus OH), and has many years of experience as in-house counsel with major U.S. corporations. She is a co-chair of the International Procurement Committee, in the American Bar Association (ABA)’s Public Contract Law Section.

Jean-Bernard Auby is professor emeritus at Sciences Po in Paris, a leading international institution on issues of public policy and law; he has been a visiting professor at universities around the world, and he founded one of the foremost academic networks on public procurement law, Public Contracts in Legal Globalization.

Michael Bowsher QC (co-moderator) of Monckton Chambers (London) is a barrister active in public procurement practice in the United Kingdom and Ireland, and a visiting professor at King’s College, London. He has helped build this highly successful series of programs on transnational issues in public procurement law.

Matt Carter, Pillsbury Winthrop (Los Angeles), has handled over 50 bid protests at the Government Accountability Office (GAO), the U.S. Court of Federal Claims, and before the U.S. Court of Appeals for the Federal Circuit.

David Drabkin recently served as the Chairman of the Section 809 Panel, https://discover.dtic.mil/section-809-panel/, a statutorily authorized panel which worked with industry and government professionals to provide recommendations to improve Department of Defense’s (DoD) acquisition system. David previously worked for the Defense Department and the U.S. General Services Administration (GSA) as its senior procurement executive.  He will play a leading role in the upcoming congressionally mandated study of bid protests at the Defense Department.

Laurence Folliot Lalliot teaches at the University of Paris – Nanterre, where she is a full Professor of Public Law and has served as Director of the Public Law Research Centre (CRDP), and Co-Director of the Master’s Degree in Law and Economics. She participates in the GOMAP directorate team (a Master’s degree in public procurement governance organized by the International Labor Organization, Sciences Po, and the University of Turin), and she teaches at the public procurement regulatory authority (ARMP) in Senegal. She is on the steering committee of the Public Contracts in Legal Globalization international academic network.

Michal Kania is a professor at the University of Silesia in Katowice, Poland and a former Fulbright Scholar at the George Washington University Law School. He is a recognized expert in public-private partnerships, and, specially for this program, has prepared a summary of bid challenges in the Polish public procurement system, and a description of the special standing of Polish civil society organizations to bring bid challenges.

Annamaria La Chimia is a Professor of Law and Development in the Faculty of Social Sciences at the University of Nottingham. She directs the world-renowned Public Procurement Research Group at the University of Nottingham, established in the School of Law in 1998 by Professor Sue Arrowsmith, which will hold a free online version of its Public Procurement: Global Revolution conference on June 22, 2021.

Katarzyna (Kasia) Kuźma is a partner in the Warsaw offices of DZP, a leading Polish law firm in public procurement law; she heads the firm’s public procurement and environmental protection teams. With her colleague Wojciech Hartung she is the co-author of Combating Collusion in Public Procurement: Legal Limitations on Joint Bidding (Edward Elgar 2020), featured in our recent webinar on bidder collusion.

Paul Lalonde is a partner in the Toronto offices of Dentons, and one of Canada’s most decorated experts on government procurement. He speaks annually on Canadian public procurement and trade developments at the Thomson Reuters Government Contracts Year in Review, and he helps coordinate Dentons’ Global Bid Protest Tracker, featured below.

Kenneth Patton is a Managing Associate General Counsel in the U.S. Government Accountability Office (GAO)’s Office of the General Counsel. He oversees GAO’s bid protest function and is responsible for leading and managing the attorneys and administrative staff responsible for resolving bid protests filed at GAO, the leading forum for bid challenges in the U.S. government.

Geo Quinot is the Director of the African Public Procurement Regulation Research Unit (APPRRU) and a Fellow of the Ciucci Centre for Law and Social Development, based at the Law Faculty at Stellenbosch University, in South Africa. Professor Quinot is a professor in the Department of Public Law at Stellenbosch, where he teaches administrative law and constitutional law; he also serves as the current editor of the Stellenbosch Law Review journal.

Gabriella Racca is a Full Professor of Administrative Law at the Department of Management of the University of Turin (Italy). She is the Coordinator of the IUS Publicum Network review, founded in 2011 with the aim of following the evolution of Public Law and public procurement starting from the most influential reviews.  Professor Racca is a regular academic contributor to the international discourse on public procurement and she was the co-editor (with Chris Yukins) of Integrity and Efficiency in Sustainable Public Contracts. Balancing Corruption Concerns in Public Procurement Internationally (Bruylant, 2014) and Joint Public Procurement and Innovation: Lessons Across Borders (Bruylant 2019).

Johannes Schnitzer serves as Managing Counsel, Global Public Sector at McKinsey & Company, based in Vienna, Austria; he manages an international team of lawyers handling public procurement matters for McKinsey. He was previously in private practice, and he has many years of experience in European bid remedies procedures.

Roland Stein, a partner in the BLOMSTEIN law firm (Berlin) and a highly regarded procurement lawyer in Germany, is a co-chair of the IBA’s subcommittee on exclusions and debarments, a member of the board of the Forum Contracting association as well as a co-leader of the defense and security division of Forum Vergabe, a leading German procurement group.

Andrea Sundstrand is a lecturer in public law at Stockholm University with a special focus on public procurement law. She is course director of the advanced course on public procurement law and of two online courses on public procurement law directed towards practicing lawyers. She also teaches public procurement law at GW Law School, at King’s Collage in London and at Tartu University in Tallin. Andrea is chairman and the responsible publisher for the Procurement Law Journal (UrT, www.urt.cc)), which publishes in both English and Swedish.

Peter Trepte is a Senior Fellow in Public Procurement Law and Deputy Director of the Public Procurement Research Group at the University of Nottingham (see Anna La Chimia’s entry, above); he coordinates the Public Procurement: Global Revolution conference there. He is of counsel with Grayston & Company (Brussels), a barrister with Littleton Chambers (London), and one of the world’s most respected authorities on development and public procurement law.

Christopher Yukins, co-moderator, is the Lynn David Research Professor of Government Procurement Law at the George Washington University Law School. He recently completed a study of agency-level bid protests for the Administrative Conference of the United States, and will serve as a principal investigator in a forthcoming congressionally mandated study of bid challenges at the U.S. Department of Defense.

Coordinated with: 

• International Association of Young Lawyers (AIJA)
• ABA Public Contract Law Section – Int’l Procurement & Bid Protest Committees
• ABA Section of International Law – Int’l Procurement Committee

Resources

Panelist Laurence Folliot Lalliot was co-editor on an important resource on bid challenge systems around the world, including China, Africa (selected nations, including South Africa), the European Union’s member states, the Netherlands, Romania, Spain, the United Kingdom and the United States, Oversight and Challenges of Public Contracts — Contrôles et Contentieux des Contrats Publics (Laurence Folliot-Lalliot & Simone Torricelli, eds.) (Bruylant/Brussels 2018); selected chapters from that volume are available online here.

Daniel I. Gordon, Constructing a Bid Protest Process: Choices Every Procurement Challenge System Must Make, Public Contract Law Journal, Vol. 35, No. 3 (2006), available at https://ssrn.com/abstract=892781 — an important survey of the key elements of a bid challenge system.

Panelist Paul Lalonde is a partner in the Toronto office of the Dentons law firm, which sponsors a publicly available database on bid challenges procedures worldwide.

Ian Hargreaves (JD, GW Law 2021) is publishing a paper examining bid challenge systems around the world. His paper Understanding the Standards of Bid Protest Standing: A Comparative Analysis of Bid Protest Standing Rights and Requirements Across 98 Countries and the European Union will appear in the Public Contract Law Journal, which is jointly published by the American Bar Association and GW Law.

The American Bar Association recently published Bid Protests: A Guide to Challenging Federal Procurements (ABA 2021). Andrew Shipley and Daniel Chudd served as the principal authors and editors of the book, which was prepared with other members of the ABA Public Contract Law Section. The book offers an authoritative review of bid protests at the contracting agencies, the U.S. Government Accountability Office and the U.S. Court of Federal Claims, and a detailed discussion of key practical and procedural issues in U.S. federal bid protest practice.

The Section 809 Panel, a congressionally mandated blue ribbon panel which assessed a broad range of potential acquisition reforms, pointed out that the purpose of bid protests has never been defined by Congress in the U.S. system. Pointing to two competing impulses over the long history of the U.S. bid protest system — making the wronged bidder whole, and raising early warnings of system failure — the Section 809 panel recommended a legislative statement of purpose.

The World Bank hosts the Global Public Procurement Database, a vitally important resource on procurement laws and materials from around the world. The database includes statutes, regulations and related materials from national systems. The World Bank’s central repository is rapidly becoming an essential resource for transnational research in public procurement law.

RAND Corporation undertook a congressionally mandated study, Assessing Bid Protests of U.S. Department of Defense Procurements, by Mark V. Arena, Brian Persons, Irv Blickstein, Mary E. Chenoweth, Gordon T. Lee, David Luckey, Abby Schendt. This very thorough study included critical data on the relatively low number of protests in the U.S. system, and assessed officials’ persistent concerns that bid challenges are disruptive and unnecessary.

Center for Strategic and International Studies, Who’s the Fairest of Them All: The Effects of Bid Protests on the Acquisition System (2016) (1:32) – panel on the causes and impacts of bid protests, especially at the U.S. Defense Department.

Co-moderator Christopher Yukins (George Washington University Law School) recently published an essay in the Regulatory Review (U. Pennsylvania Law School), Rethinking Discretionary Bid Protests (May 2021). The piece argues that bid protests in the U.S. federal government can be viewed as risk-reduction measures — if handled properly, protests (brought by vendor-challengers who act, in essence, as whistleblowers) can provide early warnings of systemic failures in the procurement system.

This will be the first global webinar of its kind on bid challenges — a unique opportunity to gain international perspectives on bid protest practice.