00:20:02 Christopher Yukins / GW Law: Program materials are at https://publicprocurementinternational.com/gw-law-webinar-u-s-bid-protests-progress-and-reform/. 00:24:15 Scott Flesch: We will briefly reference Sec. 818 of HR 3838. It may be useful to review the proposed legislation. Find it at: https://www.congress.gov/bill/119th-congress/house-bill/3838?q=%7B%22search%22%3A%22hr+3838%22%7D&s=1&r=1 00:24:48 Lynette Stevenson: Most Non-Tribal Small Businesses are unable to afford the legal costs. In conjunction, the fee increased to 500 per filing. 00:25:36 Soala Warmate: Good morning/afternoon/evening, everyone. Happy to join from Nigeria. I’m looking forward to learning from the distinguished panelists and gaining insights from your experiences. 00:26:44 Christopher Yukins / GW Law: In October (next month) we will hosting another webinar, on the impact of AI on government procurement law practice. Per Lynette's comment: AI may reduce costs for preparing protests, so helping to level the playing field. And welcome Soala! 00:27:15 Christopher Yukins / GW Law: The Warfighter Focused case is linked on the program page. 00:30:12 heather weaver: Is it possible for you to provide a registration link for the October training? 00:30:20 Lynette Stevenson: Thank you, GW School of LAW. I believe Congress and GAO must revise how Tribal entities are awarded contracts. 00:30:33 Christopher Yukins / GW Law: The Acquisition Innovation Research Center (AIRC) report on "DoD Bid Protests" (available online) also discussed the gaps in protest cost data at DoD. 00:31:20 Christopher Yukins / GW Law: To Heather's question -- all registrants will be receiving an email invitation to the October webinar on AI in government procurement law practice. 00:32:15 Ewa Kostrzyńska: Good afternoon form Poland:) it`s a great pleasure to listen to the webinar. 00:32:55 Christopher Yukins / GW Law: It's a privilege for us. We have over 650 registrants from 47 countries for today's webinar! 00:33:13 Lynette Stevenson: Make "The Rule of Two" Statatory. GAO should make a sound decesion to adhere to Tolliver and Kindomware which was rulled by the SCOTUS. Im honored to be here. 00:34:05 Christopher Yukins / GW Law: The first GAO option (in a slightly different form) is in the House version of the NDAA, in Section 818. We will discuss that shortly. 00:34:43 Stephen Waters: Is GAO dismissing protests sua sponte, i.e., without the procuring agency filing a dispositive motion? 00:39:21 William Moorhouse: Should contractors evaluate what kind of a record they are going to need before they decide where they file their protest? 00:40:07 Matthew Corkery: Given the interplay between GAO’s proposed enhanced pleading standards and the protest cost-recovery provisions contemplated in Section 885 of the FY21 NDAA, could this trend toward procedural gatekeeping risk recreating the very inefficiencies the protest system was designed to avoid? Namely, shifting disputes toward slower, costlier forums like the Court of Federal Claims? In one view, could this negate the savings contemplated, and further; could a hybrid approach-perhaps modeled on EU procurement remedies systems or WTO standards; better preserve access to redress while mitigating abuse? 00:42:03 Christopher Yukins / GW Law: To William Moorhouse's question -- the record that is likely to be produced absolutely shapes the decision on which forum to go to, GAO or the Court of Federal Claims. The article I posted on the program page (the "Feature Comment") cites articles which discuss this tactical decision. 00:46:43 William Moorhouse: Thanks, Professor. My question was rhetorical in response to Scott's comments about how "it depends" on how fulsome a record a protester will get. Perhaps taking a seemingly knee-jerk protest to GAO, only to turn around and file again at COFC after losing at GAO because now the protester wants more discovery should, should, perhaps, have some consequences for the negative effects that has on the agency, even after the protester loses again at COFC. 00:46:44 Christopher Yukins / GW Law: To Matthew Corkery's point -- if too many barriers are raised (additional fees, procedural barriers, etc.) then the protest system as a whole may be found to be "not effective," per international standards (such as the OECD-sponsored Methodology for Assessing Procurement Systems). If the protest system is not "effective" it will not pass muster under the United States' many international commitments under the WTO Government Procurement Agreement, other trade agreements, the UN Convention Against Corruption, etc. 00:53:02 Scott Flesch: I apologize. I disparaged Spaceballs. Crossing the streams is out of Ghostbusters. Apologies to Bill Murray. 00:54:48 Soala Warmate: Is it not possible to devise a strategy that prevents the incumbent from continuing with the contract while the protest is under review? 00:57:35 Christopher Yukins / GW Law: To Soala's question -- yes. As the program page (and accompanying article explain), under the FAR the agency need not award the "bridge" contract during the pending protest to the incumbent -- it can be competed. 00:58:57 Jon Gottschalk: To Soala - It's usually a matter of administrative efficiency for the agency to keep the incumbent working (no need to go through the security badging process with current contractor employees, etc.) 00:58:57 Jane Converse: Would GAO ever consider removing the presumption of the automatic stay in the event of a protest, like the FAA Office of Dispute Resolution for Acquisition? 00:59:27 Luis Ernesto Peña: How can be addressed using this stay to delay the award with an unjust claim to extort or negotiate? 00:59:35 khaled shmait: Good afternoon from Lebanon. Any other action is done if the protest is meritless and what are the differences between the meritless and lost the loosing protests? 00:59:35 Scott Flesch: @jane There is no presumption for a stay at GAO. It created by statute. 01:00:13 Christopher Yukins / GW Law: A short piece on the AI "hallucinations" before GAO is in the "Resources" on the program page, https://publicprocurementinternational.com/gw-law-webinar-u-s-bid-protests-progress-and-reform/ 01:00:23 Jane Converse: I understand that. However, why not submit a legislative proposal to place the burden on the protester to justify the stay? 01:01:34 Jamar King: Hey @dana, what is the citation to the case you mentioned? 01:02:39 Josh Bell: Double checking briefs for issues related to AI use is a great tool to use not just for judges but for practitioners. There are an increasing number of states that are adding to their rules of professional responsibility requirements related to AI (particular to competence, diligence, etc.). 01:05:42 Andrew Hickey: A word of caution about using 'purpose built' legal AI (e.g., Lexis and Westlaw). These tend not to actually be that much better. Here's a paper addressing the specific risks of hallucinations in legal AI. https://huggingface.co/papers/2405.20362 01:06:36 Christopher Yukins / GW Law: If you post your (excellent) questions and comments to "Everyone" they will be included in the program archive materials. Many thanks. 01:08:30 Dana Chase: The decision I cited was Oready, LC B-423524.2, 13 AUG 25 01:08:58 khaled shmait: Is there a freezing period after the protest is applied? 01:09:02 Christopher Yukins / GW Law: As noted, a significant bonding requirement might raise obstacles to protesters, rendering the system "not effective" and thus out of compliance with international agreements. 01:09:06 Gabriel Soll: https://www.gao.gov/products/b-423524.2 01:09:32 Katlyn Har: To what extent will/could these NDAA reforms affect the civilian bid protest processes, especially those not directly altering CICA? 01:09:59 Dana Chase: Elizabeth in response to your questions about bonds. Statutes would have to be put in place to be sure there is a mechanism not to violate fiscal laws. Bid protests at GAO are supposed to be quick, efficient, and low cost means to resolve issues. Bonds would take away from t hat purpose 01:10:11 Scott Flesch: @Khaled. A "freezing" period is statutorily applied via the CICA stay in most cases. 01:10:27 Scott Flesch: … at GAO only. 01:12:04 Kevin Misener: There is an interesting tool on GitHub that links with an OpenAI API to quantify hallucination rates with unaugmented ChatGPT data, just toying with it, I have seen lower scores from prompts that would draw on GAO decisions in the training compared to the BCAs, though that is not a rigorous conclusion. RAGAs is another fun tool for looking into the training data and output. https://github.com/leochlon/hallbayes 01:12:59 khaled shmait: Thank you for this webinar. I have to move to University of Rome TorVergata online program non. Regards 01:13:46 Christopher Yukins / GW Law: To Khaled's question, a GAO protest triggers an automatic statutory stay until the decision is issued (typically about 100 days). An agency-level protest automatically triggers a stay. FAR 33.103. A Court of Federal Claims (COFC) judge must decide, as a discretionary matter, to enjoin the procurement, through agencies often agree voluntarily to stay a procurement during the pendency of a COFC protest. In the European Union, in contrast, under the Remedies Directives ALL procurements are stayed ("standstill") for 10 days after the award is announced, before the contract is signed, to allow a bid protest (remedy) to be brought before the contract is signed. This is discussed in more detail on the program page. 01:15:08 Christopher Yukins / GW Law: Our greetings to our dear colleagues at the University of Rome - Tor Vergata! 01:15:34 Christopher Yukins / GW Law: Links to the Revolutionary FAR Overhaul deviations are on the program page, https://publicprocurementinternational.com/gw-law-webinar-u-s-bid-protests-progress-and-reform/. 01:19:36 Stephen Waters: Do agency-level protests create three bites at the apple? 01:19:36 Gabriel Soll: Are the AMC materials/processes available publicly? 01:20:34 Christopher Yukins / GW Law: Yes -- and it's worthwhile looking up the excellent article on agency-level protests by LT COL Bruce Mayeaux 01:21:43 Christopher Yukins / GW Law: Do Stephen Waters 01:21:48 Scott Flesch: @Gabriel https://www.amc.army.mil/Contact-Us/AMC-Protest-Program/ 01:22:35 Scott Flesch: @Stephen, yes. Three bites are possible. 01:24:44 Christopher Yukins / GW Law: To Stephen Waters' question -- yes, agency-level protests do raise a risk of three-bite protests. Because the availability of the record really drives "multiple-bites," this problem may evaporate as "open government" laws take hold and the administrative record is more readily available. Rapid advances in redaction software will make this easier -- it will make it easier for the government to make the administrative record publicly available. In July, we had a 3-part webinar series (available on publicprocurementinternational.com) on "Open Contracting Around the Globe." Many nations are far ahead of the United States (indeed, many states in the US) in "open contracting" -- making public procurement data accessible and machine readable. 01:27:14 Dana Chase: Soala - in response to your question about preventing an incumbent from continuing with the contract. the agency is not required to continue with the incumbent contractor. If the current contract is ending, they can award a short-term bridge contract to another contractor other than the incumbent. 01:27:35 stefan glomazic: In my experience, all agency actions in case of agency level protests were sad and transparent efforts to cause the company to miss the deadline for filing a GAO protest and getting a stay. 01:29:43 Luis Ernesto Peña: Excellent panel 01:29:53 Dana Hill: Good Morning, will these slides be shared with the participates 01:30:36 Cherie Owen: Great panel - thanks to all panelists!! 01:30:45 Christopher Yukins / GW Law: It's worth noting that the Federal Circuit Percipient.ai en banc decision (which took a cautious approach to statutory interpretation) was issued the day before the blockbuster "tariffs" decision by the Federal Circuit, sitting specially en banc, which also took a cautious approach to statutory interpretation. 01:31:10 Christopher Yukins / GW Law: Slides will be posted on the program page shortly - thanks for the reminder! 01:32:21 Harriet Brown: Thank you all! Very informative. 01:32:45 Halliday Moncure: Thank you, everyone. Excellent webinar. 01:33:56 Ewa Kostrzyńska: Thank you so much for very fruitfull meeting:) 01:34:23 Lina Zidan: Excellent Panel! Thank you to all panelists!!:) 01:34:56 Julia McIlroy: Excellent webinar! Great information. Thanks! 01:35:18 Pamela Dickerson: Informative discussion! Thank you, All! 01:35:47 Chukwuma Chinaka: Thanks for this eye opening webinar!!! 01:35:51 Sehseh Sanan: thank you! 01:35:54 Gabriel Gnall: Thank you! 01:35:55 Aaron Jackson: Thanks, Professor Yukins and distinguished panel. Outstanding presentation! 01:36:05 Clarine Allen: Thank you! 01:36:18 Barbara Behn Ayala: Great panel - thank you! 01:36:27 Tomislav Makismovski: Thank you for the webinar ! 01:36:33 Alex Wepfer: Informative webinar with a great panel! Thank you. 01:36:34 Todd Watson: Thank you All. Excellent webinar 01:36:37 Ryan Howard: Outstanding - Thanks! 01:36:38 Soala Warmate: Insightful. A lot of things to adapt. Thank you Professor Yukins and all panelist 01:36:39 Sheila Chapman: Extremely interesting and informative discussion. wonderful panel. Thank you. 01:36:46 Andrea Nwachukwu: Thank you! 01:36:47 Katlyn Har: Thank you! 01:36:47 Wilmary Bernal: Thank you! 01:36:50 Katherine Vultaggio: Thank you all so much! 01:36:54 Ovidiu SLIMAC: Thank you!