Christopher Yukins / GW Law: Hello, well, welcome to this latest in our series of webinars here at George Washington University Law School at the Government Procurement Law Program. I'm Chris Yukins, I'm the Lynn David Research Professor of Government Procurement Law here at GW, and I want to welcome you
Christopher Yukins / GW Law: to this webinar on U.S. Bid Protest Progress and Reform. It's going to be a very interesting webinar because there are so many protest reform proposals pending before Congress and elsewhere here in Washington, so I'm really glad that we could pull this together, pull this webinar together, and have such an outstanding panel join us as well.
Christopher Yukins / GW Law: The recording from today's program will be available later today at publicprocurementinternational.com. There are extensive program materials available there as well. If you just click through, look for the webinar in the upper left-hand corner.
Christopher Yukins / GW Law: of that page, and you'll click through to the, to the program page. We also will be posting the video at the GW Law Government Procurement Law Program
Christopher Yukins / GW Law: YouTube page, where we have our other webinars posted as well. There will be a podcast produced from this in the coming weeks. We… in the program, we're starting a series of podcasts, and this webinar will be distilled
Christopher Yukins / GW Law: down to a podcast as well. The, during the course of the session, if you have questions, please feel free to use the Q&A function, and,
Christopher Yukins / GW Law: We'll be responding to the Q&A, and if possible, to the chats as well. I want to stress that the speakers' statements today are in their personal capacities, and the Chatham House Rule applies.
Christopher Yukins / GW Law: So, I'm going to give you a quick overview of the panelists, and then we're gonna move to the heart of the program. We're gonna have a presentation on the Section 885 report from GAO. We're gonna discuss various reform proposals under consideration.
Christopher Yukins / GW Law: And then we're going to turn to the precipient AI decisions, especially the last one from the Federal Circuit.
Christopher Yukins / GW Law: Our speakers today are Ken Patton, who's the Managing Associate General Counsel at the U.S. Government Accountability Office. He'll speak to GAO's Section 885 report to Congress on proposed bid protest reforms. He oversees GAO's bid protest function, and is responsible for leading and managing the attorneys
Christopher Yukins / GW Law: and administrative staff responsible for resolving bid protests at GAO.
Christopher Yukins / GW Law: We also have Judge Marion Blankhorn, who was appointed by the President and confirmed by the United States Senate as a judge of the U.S. Court of Federal Claims in 1986, and again in 2003. She's a graduate of Barnard College at Columbia University, and received a JD degree from the Fordham University School of Law.
Christopher Yukins / GW Law: She's a professorial Lecturer in law at GW Law School. We're also joined by Dana Chase, who's the Chief Trial Attorney in the U.S. Army Legal Services Agency at Fort Belvoir in Virginia. She's a professorial lecturer in law at GW Law as well.
Christopher Yukins / GW Law: She directs a team of trial attorneys in defending the Army in appeals before the Armed Services Board of Contract Appeals and the U.S. Court of Federal Claims, and provides oversight of all bid protests before the Government Accountability Office, U.S. Court of Federal Claims, and the U.S. Court of Appeals for the Federal Circuit.
Christopher Yukins / GW Law: I'm joined as well by Scott Flesch, who's a member of the law firm at Miller & Chevalier. He's served for many years as a lecturer at the Catholic University of America's Columbus School of Law. He represents government contractors in high-stakes matters, including big protests. He previously served
Christopher Yukins / GW Law: as Chief Trial Attorney for the U.S. Army, and as Chief Bid Protest for the U.S. Army's Contract Litigation and Intellectual Property Division.
Christopher Yukins / GW Law: Finally, Brian Goldberg is an attorney with the U.S. Department of Defense. He's joining us. He recently received his LLM degree in government procurement Law from GW Law School, where he wrote his thesis on the Percipient.ai litigation.
Christopher Yukins / GW Law: With that, I'll turn it over to Ken Patton to discuss the Section 885 report that was delivered by GAO in response to a specific request in last year's National Defense Authorization Act from Congress to GAO.
Kenneth Patton: Thank you, Chris, and good morning, everyone, and good morning to my colleagues, distinguished panelists, and thank you for inviting me to participate in this panel.
Kenneth Patton: As Chris mentioned, the National Defense Authorization Act for fiscal year 2025 included a provision, Section 885, for GAO to propose to Congress
Kenneth Patton: a process by which a loser at a VAO bib protest could pay the Department of Defense and the potential awardee its lost profits.
Kenneth Patton: This is… was a pretty unique provision in that Congress typically does not ask GAO for a legislative proposal, but in this instance, they wanted to see what our views were with regard to a loser of pay, which is what this kind of arrangement is typically referred to as.
Kenneth Patton: Congress had it.
Kenneth Patton: previously enacted a provision in the 2018 National Defense Authorization Act for fiscal year 2018 for the Department of Defense to create and implement a pilot program to see whether or not
Kenneth Patton: lose or pay could be a viable alternative to allow the Department of Defense to recoup
Kenneth Patton: profits and to discourage frivolous protests from being filed at the Department of Defense, but they subsequently repealed that provision. So 885 was Congress's latest,
Kenneth Patton: Attempt to try to get at a mechanism or a manner to discourage frivolous protests from being filed.
Kenneth Patton: As you will see from that initial slide, GAO implemented and wrote its proposal and provided it to Congress. There is a link to where it is published on GAO's website for those of you who want to read it.
Kenneth Patton: If we can move to the next slide.
Kenneth Patton: So, what did 885 require?
Kenneth Patton: First, 885 required GAO to develop an enhanced pleading process for those who are interested in participating in the big protest process.
Kenneth Patton: It also required… if we go… there we go. It also required GAL to develop benchmarks, and these benchmarks were to capture the cost for the Department of Defense to resolve and manage a GAL bid protest, and also it was to capture the cost
Kenneth Patton: for lost profits for the awardee of a… who was involved in the GAL bid protest. And lastly, it required GAL to develop a process
Kenneth Patton: to…
Kenneth Patton: recoup the lost profits and costs for the Department of Defense, utilizing the benchmarks that UAL was to develop.
Kenneth Patton: Next slide.
Kenneth Patton: So, let's talk a little bit about some of the statistics that involve… that the Department of Defense has with GAO and GAO big protests. As you can see from this chart, it's a 10-year snapshot of the number of protests for government-wide
Kenneth Patton: procurements at the protests at the Government Accountability Office and DoD. The top number represents the government-wide, and the stated numbers represent the number of DoD procurements.
Kenneth Patton: as you can see over this chart, over the 10-year period, the number of protests at GAL from the Department of Defense and from the government has steadily declined in the last 10 years, and GAL has a number of theories as to why that might have taken place. One of the theories that we think
Kenneth Patton: probably has impacted the Department of Defense most significantly, is in 2018, Congress required the Department of Defense to create what are called enhanced debriefing processes. And these processes required the Department of Defense to provide more information to
Kenneth Patton: offer… losing offroars about why they lost, why they didn't win the contract. And one theory is that with more information.
Kenneth Patton: Companies decided that they had the information they needed to do better the next time, and they did need to file a big protest in order to obtain that additional information.
Kenneth Patton: There are other theories about why
Kenneth Patton: contractors may have decided not to protest, but again, it's very difficult to understand why a company makes a business decision, to decide not to file a protest. There's no real data that's out there. The most that we can do is perhaps
Kenneth Patton: come up with some theories. One of the other theories that we had with respect to why procurement
Kenneth Patton: People protests have declined.
Kenneth Patton: is that Congress has also raised the Dollar threshold for when
Kenneth Patton: companies may file protests of task and delivery orders from the Department of Defense. Currently, that threshold is $35 million, meaning that in order to file a bid protest at GAO,
Kenneth Patton: your procurement has to have a value in excess of $35 million. So that's going to cut out a number of procurements that are below that threshold. So that's, again, another theory as to why big protests from the Department of Defense may have declined over this 10-year period.
Kenneth Patton: As you can see from the bottom of this chart.
Kenneth Patton: We also, in coordination with the Department of Defense, identified the number of procurements that GOD enacted.
Kenneth Patton: From 2020 to 2024, which, as you can see, was about 144,000.
Kenneth Patton: Out of those, there were 2,300
Kenneth Patton: the protests filed at GAO, which represented about 1.5%. So, as you can see, a very small number of the overall number of procurements that DOD enacted over that 4-year period were actually protested at GAO.
Kenneth Patton: Next slide.
Kenneth Patton: So, let's get into a little more of the details about the enhanced pleading standard.
Kenneth Patton: GAL's regulations require that a bid protest set forth very detailed and factually accurate
Kenneth Patton: indicia of a protest. And if you don't.
Kenneth Patton: provide that information, GAO is likely to dismiss your protest, meaning we will
Kenneth Patton: Get rid of it, and not consider any of the merits.
Kenneth Patton: Congress, in asking us to provide for an enhanced pleading standard.
Kenneth Patton: Asked us to provide a standard that might
Kenneth Patton: made it a little more challenging for protesters to file a protest, and the theory behind this was that perhaps there were companies that were filing protests that were meritless, and
Kenneth Patton: Congress wanted to see if there was a way to raise that bar, raise that threshold to make it a little more challenging, or in other words, to make sure that if you're going to file a protest, that your grounds were factual, accurate, and had some valid bases.
Kenneth Patton: GAL looked at its pleading standards, and we discovered that while our regulations provided for very clear
Kenneth Patton: standards that we would apply in protest, our decisions sometimes created some ambiguity as to what type of protests you needed to file in order to withstand being dismissed.
Kenneth Patton: we had articulated a standard that said allegations or evidence would be sufficient to withstand a GAO request for… a request for dismissal of your protest, implying that you could either
Kenneth Patton: plead allegations, or you could either plead evidence. One or the other was sufficient. In practice, what we typically said was that speculative allegations were not sufficient, and in essence.
Kenneth Patton: we are sort of saying something out of the two sides of our mouth. So, what we decided to do was, in response to Section 885, we were going to clarify what our
Kenneth Patton: pleading standard is, and that standard now stands, you've got to allege credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester's claim of improper agency action.
Kenneth Patton: So, we're focusing more on making sure the allegations are credible, rather than giving people an alternative to think about whether they're the allegations or evidence.
Kenneth Patton: That standard has been articulated in the case that you see at the bottom of that slide, warfighter-focused logistics, and it is the standard that GAL will use moving forward with regard to fleeting.
Kenneth Patton: Next slide.
Kenneth Patton: the benchmark.
Kenneth Patton: So… In order to make this process easier for the Department of Defense, Section 885 envisioned a chart of
Kenneth Patton: benchmarks.
Kenneth Patton: Based upon the value of the procurement, and the cost that DoD
Kenneth Patton: utilized to defend in a particular protest. So, in other words, you might have a…
Kenneth Patton: part for $5,000 procurement, DOD spends X. $10,000 procurement, DOD spends X plus 1, and so forth and so on. That way.
Kenneth Patton: the department could look at the cost and say, oh, this procurement was, you know, a million dollars, so we would likely have X amount of cost.
Kenneth Patton: That would be the cost that you would need to reimburse the Department of Defense.
Kenneth Patton: In order to create such a benchmark, however, GAO and the Department of Defense needed to examine the procurements and the protests that the department defended against to find out where… what those costs were.
Kenneth Patton: As we… and those costs included things like cost for council, the contracting officer, program official costs.
Kenneth Patton: They also included contract delays, the cost of awarding interim contracts. And so, as we engaged with the Department of Defense to ask them
Kenneth Patton: what was the data behind some of these particular points, we discovered, and DOD probably already knew, they didn't capture these kinds of costs, particularly because there was no statutory requirement for them to do so.
Kenneth Patton: When we looked at the totality of the number of costs that DoD had, when we looked at the number of procurements that DoD had, as I previously mentioned, we found that they
Kenneth Patton: The number of protests at GAO was only 1.5%, and so from their perspective, it really didn't make a lot of business sense for them to attempt to capture these kinds of costs for a very, very small number of
Kenneth Patton: Pyramids.
Kenneth Patton: Next slide.
Kenneth Patton: Section 885 also required
Kenneth Patton: UAO and DOD to attempt to capture the lost profits for the awardee that were… the awardee might have
Kenneth Patton: earned during the pendency of a big JAO big protest.
Kenneth Patton: as some of you may or may not know, when a company files a big protest at GAO within certain timeframes.
Kenneth Patton: the agency's procurement is automatically stayed. That means that the agency can't move forward with performance of that contract. So, this section
Kenneth Patton: really wanted GAO and DOD to determine what the anticipated profits that a contractor might have earned during dependency of that pause on the performance of the contract.
Kenneth Patton: Again, we engage with the Department of Defense, and we also engage with a number of private
Kenneth Patton: sector organizations to find out what costs or profits they might have earned during dependency of a YAOB protest, and
Kenneth Patton: not a lot of them… I would virtually say none of them wanted to provide that type of information. They cited proprietary sensitivity concerns. They also cited the fact that they weren't required to provide that information to the Department of Defense, and so, again.
Kenneth Patton: the private sector entities didn't want to provide it, and the Department of Defense didn't collect it. So, that information, again, was unavailable for GAL to develop the type of benchmarks that were envisioned by Section 885.
Kenneth Patton: Next slide.
Kenneth Patton: So, what did all that mean?
Kenneth Patton: At the end of the day, Section 885 created a regime envisioning benchmarks that would peg
Kenneth Patton: cost for DoD and lost profits to the value of a particular procurement.
Kenneth Patton: Well, none of that information is maintained by the Department of Defense, none of that information is provided to the Department of Defense by the private sector, so the benchmarks as envisioned by Section 885 couldn't be developed.
Kenneth Patton: However, that wasn't the end of the story for GAO.
Kenneth Patton: We provided Congress with some alternatives, and the first alternative would have been
Kenneth Patton: to require the Department of Defense by statute to enact a contract provision that would allow the department to file a government claim to recoup lost profits in the event that GAO dismissed a protest because it lacked a legal or factual basis.
Kenneth Patton: The second alternative… now, that alternative would… would also require the… or give the department some discretion as to whether or not to file a claim.
Kenneth Patton: So it wouldn't be an automatic, because a government claim is an affirmative action that the department would have to take. This, we thought, would give the department some discretion to go after those contractors that the department thought were particularly egregious, or that they thought that their protests were
Kenneth Patton: really meritless. So, they wouldn't have to do it all the time, but in those instances where they thought it was a problem, they could file a government claim.
Kenneth Patton: The second alternative would have been for the Congress to provide GAO with the authority to make recommendations with regard to lost profits.
Kenneth Patton: We thought this second recommendation would be particularly challenging to implement at GAO, one, because of GAO's placement in the government. GAO is part of the legislative branch of government.
Kenneth Patton: We don't have the authority to mandate or require the executive branch to do anything. We only make recommendations. The second
Kenneth Patton: concern with regard to the requiring or authorizing UAO to
Kenneth Patton: make recommendations here, was that GAL doesn't have any authority over the private sector, and so how would you implement a process for a loser to actually pay the government and the awardee its lost profits?
Kenneth Patton: remains to be seen. It would require some additional analyses and thought as to how to make something like that work.
Kenneth Patton: One final footnote I will say is that, the first option
Kenneth Patton: has somewhat been adopted by the National Defense Author… the House version of the National Defense Authorization Act for fiscal year 2026, Section 818. It includes a provision that would require the Department of Defense to create a defense federal acquisition
Kenneth Patton: regulation clause to sort of implement this first option here. So with that, I'm going to turn it over to my colleague, Chris, to take us further.
Christopher Yukins / GW Law: Thank you very much, Ken. So, in this portion of the program, we'll be discussing various reform proposals. A number of these were reviewed in a subcommittee meeting in the House Government Operations subcommittee on July 22nd. You can see our own Ken Patton there was on the panel with me, and with Zach Prince.
Christopher Yukins / GW Law: And we took, a lot of interesting questions from members of the House Subcommittee, and again, a lot of their proposals that they wanted to ask us about, we'll be discussing in the next few slides.
Christopher Yukins / GW Law: So, the first issue is the issue of two-bite protests, and these issues are also discussed in further detail on the program page as well, if you'd like some background materials. So, this issue of 2-bite protests, or two-bite at the apple, to use the, the,
Christopher Yukins / GW Law: the phrase in English. The… the… this is where, if a protest… a protest can be brought originally at GAO, and then if it's lost, it'll be brought again for second bite of the apple, so to speak, at the Court of Federal Claims.
Christopher Yukins / GW Law: And these have been controversial, because essentially the same protest is being litigated twice, but as you'll hear now in our discussion, in practice.
Christopher Yukins / GW Law: Oftentimes, the way that the protests are heard and decided, as literature on the program page discusses, can be quite different. So the first question I have is for Dana. Dana, are these types of two-bite protests, are they burdensome for the agencies?
Dana Chase: Good morning, and thank you for having me. Yes, they can be burdensome for the agency, because the record at GAO is limited to the relevant issues of the protests brought up by the protester, whereas at the Court of Federal Claims, the record is much larger. So in a relatively short timeline.
Dana Chase: The agency has to gather up all the documents, for the record to present it at the Court of Federal Claims, so everything having to do with the solicitation and the offerors, everything goes into that record.
Dana Chase: So it's a large record to gather in a short period of time, it has to be reviewed, the contracting officer has to certify it.
Dana Chase: And then, also at the same time, there's considerations for the agency. While the protest was at GAO, there could have been a CECA stay. Do they want to continue the stay? Do they want to do, they want to move forward with contract awards? So they're also trying to juggle that at the same time.
Dana Chase: So there's a lot, that is burdensome for the agency when you have a two-bite protest.
Dana Chase: But the idea is you have to balance that with issues that the protester identifies and is trying to seek resolution, so it's, you know, the balance of the integrity of the system.
Dana Chase: With these two-bite protests.
Christopher Yukins / GW Law: Thank you, Dan. Scott, are these debite processes, are they necessary to ensure a full administrative record?
Scott Flesch: Sometimes.
Scott Flesch: So, I think it truly depends whether or not you're in a pre-award or post-award stage, because the relevant record will be very different.
Scott Flesch: And you can have a pre-award protest attacking a solicitation that carries on to a post-award stage, in fact, if there's no stay on performance. So, it varies per procurement and per protest of what a full administrative record really should look like.
Scott Flesch: But yes, I mean, the premise that you get a different record, and that it may be necessary to carry on a protest to the Court of Federal Claims, is a very real consideration for government contractors, because, as Dana said.
Scott Flesch: you're only going to get the directly relevant records at GAO, and relevancy is tied to the specific grounds raised. And so, if you're only attacking the evaluation of your own proposal.
Scott Flesch: You're probably not going to get the evaluations or the proposals of your competitors.
Scott Flesch: Whereas at the Court of Federal Claims, they have a very more fulsome, transparent approach, and the record may include all proposals, or all evaluation records, whether it's a pre-award or post-award protest, a pre-award that carries over. That record can be pretty fulsome, so…
Scott Flesch: That helps, especially when we get to the briefings later on, we'll talk about, you know, contractors just wanting more information, and sometimes it's necessary to get a more fulsome look at that record
Scott Flesch: To go to the Court of Federal Claims and take that, you know, second bite, or really, honestly, a new bite sometimes, because there really are new protests, with new records and potentially even new issues.
Christopher Yukins / GW Law: Thanks, Scott. So, for folks who are outside the U.S. government system, and thinking about the models here, just to clarify what Dana was saying, as both Dana and Scott alluded to, the GAO protest rules call for the agency to produce relevant documents.
Christopher Yukins / GW Law: While the Court of Federal Claims Rules, and they're linked on the program page, the Court of Federal Claims Rules in Appendix C
Christopher Yukins / GW Law: actually list the elements. There's a detailed list of what from the administrative record has to be produced. And that's why these different sets of rules produce different records, as Dana and Scott referred to.
Christopher Yukins / GW Law: So, Judge, if I could turn to you, could the Court… can the Court of Federal Claims, when it gets a second-bite protest, can the Court of Federal Claims take the GAO's prior decision
Christopher Yukins / GW Law: as persuasive.
Judge Marian Blank Horn: We do, generally. Although, as you know, when you've dealt with judges, we all do things somewhat differently, so I can speak primarily for myself, but I've been on the court for a long time, so I can also say that at the court here, I think most of our judges do look to the GAO opinion. You have to remember, however, the GAO body of law is somewhat different from the body of law that the Court of Federal Claims looks to.
Judge Marian Blank Horn: Although we're all bound
Judge Marian Blank Horn: by the Court of Appeals for the Federal Circuit, which is our appellate court. The one thing I do want to add, Chris, to this is that our statistics look a little bit different than the JAO. If we look at our statistics from
Judge Marian Blank Horn: 2023, they've gone up into 2024 and look like they're going to be about the same as 2024 and 2025.
Judge Marian Blank Horn: We have a lower number of cases, because a lot of the cases do take somewhat longer, and we are the second bite at the apple sometimes, although we can get protests initially without a party going to DIO, so it's a duplicate system in a number of ways. But I think, in terms of persuasiveness.
Judge Marian Blank Horn: Absolutely. We look at the Court of Appeals for the Federal Circuit first, then we look at our own decisions, which are also not binding on any of the judges of the court through a quirk in our historical past.
Judge Marian Blank Horn: So that our own judges are persuasive on each other, and then we look with the same persuasiveness, I think, to the GAO, but we do not have to agree with either. So there's a little bit of an independent judging here, as is appropriate in the federal system, and we are the resort that then leads to the Federal Circuit, and that creates some differences.
Christopher Yukins / GW Law: Thank you very much, Judge.
Christopher Yukins / GW Law: So, the next issue is perhaps the most controversial, and just for the audience, because this really spooked my fellow panelists when I told them. The illustrations we'll be using from here on in, the photographs and the slides.
Christopher Yukins / GW Law: I produced using AI, just using Gemini, that's why you see the symbol in the upper left-hand corner above the…
Christopher Yukins / GW Law: And each of these… each of these photo… each of these photos, each of these images took about 20 seconds to generate using AI. So it's really frightening when you begin to realize what… exactly what you can do with AI in terms of creating images like this.
Christopher Yukins / GW Law: So the reason that protests by incumbents are so controversial is that incumbents… critics argue that incumbents are using protests if they lose the follow-on contract, they're just using a protest to stall the follow-on contract so they can continue to gain revenues.
Christopher Yukins / GW Law: from the prior contract, that they hope to continue using a bridge contract. And that's created a lot of friction within the procurement community, the sense that protests aren't being brought in good faith, but instead are being used simply to extend a revenue stream.
Christopher Yukins / GW Law: My first question to Dana is, are you concerned that incumbents may use protests to stall a follow-on protests? Are there informal means of addressing this?
Dana Chase: It may seem that way when an incumbent files a protest, but again, the protester has to file a basis, a valid basis for that protest. And there are mechanisms in place to ensure that the protester has valid bases for protest.
Dana Chase: You had Ken Patton talking about the clarification of the pleading standards, but I also think with regards to, informal means of addressing whether, it's a mechanism to stall, if you have a robust debriefing.
Dana Chase: With an incumbent that didn't win the follow-on award, that can provide some information to them. Sometimes you have incumbents that have been working on the contract, for years, and maybe they just don't write the best proposal this time around.
Dana Chase: And so to inform them of that at a debriefing is helpful. Or even enhanced debriefing can alleviate any concerns that agencies might have that a protest is just a way to prolong the current contract.
Christopher Yukins / GW Law: Scott, if I could turn to you, is it possible to identify which incumbents are abusing the process?
Scott Flesch: Well, Congress has proposed that we try.
Scott Flesch: Mr. Patton has referenced Section 818 of House Resolution 3838, and there's some really interesting nuggets in this proposed provision, to the National Defense Authorization Act from the House side. It's not on the Senate side yet.
Scott Flesch: But what we see is a targeted approach, that the Secretary of Defense shall revise the DFARS, the Defense Supplement for Federal Acquisition Regulations, within 100 days of enactment of the statute.
Scott Flesch: And it authorizes… the procedure will authorize a contracting officer to file a claim.
Scott Flesch: And that's very interesting, because the claim, an affirmative claim, takes this matter, whether or not, effectively, the incumbent has abused filing a protest at the Government Accountability Office, because that's where it's limited to, and it's limited to incumbents, and taking that protest procedure and moving it over to
Scott Flesch: the Armed Services Board of Contract Appeals, because as if an affirmative claim
Scott Flesch: by the government, then the notice of appeal has to be filed by the contractor to rebut that, and now you have litigation at the ASBCA, or whether or not an incumbent truly have abused the system on the underlying GAO protest. That is new territory. As some of us know, the GS
Scott Flesch: A, used to have a Board of Contract Appeals many moons ago that handled protests, the GSBCA, but,
Scott Flesch: That was a long time ago. The ASBCA is not in the business of evaluating the merits of an underlying GAO protest.
Scott Flesch: But this legislative proposal puts it at the ASPCA once a claim has been filed. And there's other… some interesting other nuggets here. In fact, some of the definitions are really particularly interesting. It deals with a decision at a GAO that has been finally determined.
Scott Flesch: with respect to a dismissal of a protest. That was not appealed, it is no longer appealable because of the time for the appeal, or was appealed in the appeals process for which is completed.
Scott Flesch: Last time I checked, GAO protests are not appealed. There's no provision in the law for it. They're just refiled at the Court of Federal Claims. So, how we're going to get through this definitional approach to what qualifies for an affirmative claim to be filed
Scott Flesch: against an incoming contractor, after a GEO protest, once it's been dismissed.
Scott Flesch: I don't know. Time's gonna tell. But there's another very interesting provision in Section 818,
Scott Flesch: Of House Resolution 383, dealing with stays.
Scott Flesch: stays, that are imposed by the operation of law under the Competition Contracting Act once a protest, has been notified to the agency within a certain time window. And it stops performance and prevents award if, in fact, it, takes effect.
Scott Flesch: and usually you have two mechanisms for a contracting officer in the HCA to invoke an override of that stay, meaning that they can effectively say, no, in the best interest of the United States, or because of national security, you can move on with performance or go to fourth reward, and that can be challenged at the Court of Federal Claims as well.
Scott Flesch: However, the provision of Section D under Section 818 says a contracting officer may not determine that immediate performance of a contract is not in the best interest of the United States.
Scott Flesch: If it will facilitate the national defense.
Scott Flesch: And so we're rewriting not only, the CECA stay provisions and how contracting officers and HCAs, the heads of contracting activities, have the authority to override these stays, but we're also going after incumbents for filing protests that are dismissed
Scott Flesch: potentially on non-meritorious or, back to the word, abusive grounds. We're gonna see how this plays out, whether this gets forth to the final version of the NDAA, but stay tuned. This is certainly interesting territory, especially for incumbents, and may potentially chill the protest process as it relates to incumbent contractors.
Christopher Yukins / GW Law: Scott, if I could just follow up on that on Section 818. So, the language of Section 818 says that in order to trigger this claims process, seeking the, seeking, disgorgement by the incumbent.
Christopher Yukins / GW Law: the protest has to be dismissed on a final decision by GAO, and it has to lack any
Christopher Yukins / GW Law: reasonable legal or factual basis. Would it be possible for sophisticated counsel to try to get some sort of
Christopher Yukins / GW Law: concurrence by, or some sort of statement from GAO during the course of the proceeding that there may arguably some… be some basis for this protest, thereby cutting off that potential claim. So, in essence, does this… does Section 818 favor the sophisticated protester?
Scott Flesch: That's a great question, Chris. I don't know. I mean, that puts GAO in another…
Scott Flesch: particular interesting box of having to evaluate something that another body, the ASBCA, is charged with under the Contract Disputes Act of evaluating, where the GAO is going to put itself in a position
Scott Flesch: of forecasting or telling the ASBCA whether or not, in fact, this should be recoverable or not recoverable. I'm not sure Gio's gonna be willing to do that, and I'm not sure Mr. Patton wants to talk about that right now, but we do have, I was… I learned something a long time ago, from the movie Spaceballs, one of my favorites.
Scott Flesch: Don't cross the streams, right? Bad things happen. We are crossing protest streams with contract disputes streams, and it usually does not wind up good in the middle. Stay tuned.
Christopher Yukins / GW Law: Thanks, Scott. So, what I'm… I have a question for you about enhanced debriefings, but as part of that, to make sense of that, I'm gonna go to a, well, let me just… let me take a step back here. So, do you think that with regards to this issue of incumbent protests, Scott.
Christopher Yukins / GW Law: Do you think that enhanced debriefings would reduce the risk that incumbents might abuse the protest process in order to prolong the revenue stream?
Scott Flesch: I think enhance the briefings to the point where they truly are valuable and contain useful information.
Scott Flesch: will not only help thwart protests by incumbents, but by other unsuccessful off-oars. Information is king.
Scott Flesch: And in my experience, outside the government over the last several years, my clients seek information in order to produce a better proposal for the next competition. It is usually not… well, it's not to lock in performance for another couple of months.
Scott Flesch: It is truly to get better, and they try to ask those specific questions in the enhanced debriefing procedures to exact out information that is meaningful material to enable them to make a better proposal for the government to drive down costs and prove better solutions. So.
Scott Flesch: Sure, I think enhanced debriefings would help reduce protests by incumbents, as long as they're meaningful and contain useful information.
Christopher Yukins / GW Law: I guess, go ahead. So, the next question goes to… the next questions go to the question of meritless or purely technical protests. There is a concern on the part of many folks on the Hill that they're, that meritless or purely technical protests are being lodged.
Christopher Yukins / GW Law: You can see that in the back and forth that we had with the House subcommittee and the questions that we were asked on a follow-on basis. Those are on the program page. So, Judge, starting with you, does the Court of Federal Claims have a means to dispose of meritless protests?
Judge Marian Blank Horn: Absolutely, we dismiss the case. That's the evaluation that the judge has to do. So, I think there are a couple of things here that are really important to point out. First of all, when you get to the Court of Federal Claims, you have to seek an injunction to initiate a stay.
Judge Marian Blank Horn: So, in many cases, there is no injunction issued. In some cases, there are. I'd say the majority of them, it's hard to get an injunctive. You have to prove likelihood of success on the merits. There are typical federal injunctive standards. So, once that happens, the government's in a position to go forward if there's no injunction.
Judge Marian Blank Horn: That means, obviously, the court has to move with a certain amount of speed, but,
Judge Marian Blank Horn: There's also a lot of experience on the court at this point amongst the judges.
Judge Marian Blank Horn: Who, I've been here a very long time, but, not everybody has been here quite that long. But I also have experience from the executive branch, and, did both formation, management, contract, and, litigation, so…
Judge Marian Blank Horn: we do have expertise to take a look at meritless protests and to dispose of them rather quickly. I think,
Judge Marian Blank Horn: it is something that happens on a pretty regular basis. It's not that easy to get.
Judge Marian Blank Horn: a protest that goes through the court successfully, especially if it seems meritless. And in terms of seeing people who are, using the process improperly, we get to know most of the litigators, particularly on the large contracts which the government is
Judge Marian Blank Horn: concerned about moving forward to the defense contracts. And we can tell pretty quickly, there are definitely attorneys who, file almost anything.
Judge Marian Blank Horn: What does that do to a judge? The judge looks very much more closely at that protest, and they tend to be unsuccessful. So I think the system works, and I think there certainly is a way for the government to go forward in a lot of protests.
Judge Marian Blank Horn: At the Court of Federal Claim, there's no automatic stay. You literally have to go through the injective standards, which are pretty tough. And it's a balancing of the equities, in a sense.
Judge Marian Blank Horn: It's, the future of success. These are tough standards, and the government can prove that the balance, for example, of going forward with, as opposed to a stay, makes a difference.
Christopher Yukins / GW Law: And Judge, we don't think you've been there for a very long time. We think of you as a pillar to a very successful institution, so thank you.
Judge Marian Blank Horn: That's kind.
Christopher Yukins / GW Law: So, Scott, one of the things that you see over and over again in the policy discussions and the legislative proposals is a working assumption that a protest that loses must be meritless. Is that a fair assumption? Are all losing protests, should we consider them all meritless?
Scott Flesch: No.
Scott Flesch: And you have to also look at it from a FOIA perspective. So, think of this scenario, and I think this can be a nightmare for GAO, is you have a protest at GAO that raises certain grounds based upon credible evidence at the time, and it's more limited in nature.
Scott Flesch: The limited record is produced, GAO denies a protest based upon the record available, it marches off to the Court of Federal Claims, the entire acquisition record is produced, and lo and behold, there are records that actually provide merit to the underlying protest grounds.
Scott Flesch: That's not a great scenario. So, should all losing protests be considered meritless? No, and you have to look at it, in the various fora, in a different analysis, and just because it loses, and it doesn't mean that's standard, does not mean it's meritless overall.
Scott Flesch: So, no.
Christopher Yukins / GW Law: Thank you, Scott. So, Dana, I want to turn to this issue of AI that we're… and I noted in the chat that we're going to be having a session in October on the impact of artificial intelligence, or AI, on government procurement records. Just for the record, I seasoned this when I was able to write a protest in less than 20 minutes using AI. That genuinely shocked me.
Christopher Yukins / GW Law: That I was able to do that.
Christopher Yukins / GW Law: The… so, there's gonna be more, protests, potentially, using AI. Are problematic protests a bigger problem with the dawn of these… this artificial intelligence driving protests, Dana?
Dana Chase: We're certainly, at least in my office, we're seeing an increase in the use of AI large language models to either generate protests, discuss cases that may not exist, so it's called AI hallucinations.
Dana Chase: And it's typically more with pro se protesters, so where with pro se protesters, we would get a 2-3 page protest with.
Dana Chase: issues that we could address, we could identify, a little bit easier to respond to and gather the record for. We're now getting, like, 25, 50 pages or more, protests that appear to be AI-generated.
Dana Chase: And when you dig into them, you see maybe facts are hallucinated, cases are hallucinated.
Dana Chase: And sometimes it's, like, AI run amok, and it hasn't been checked by the protester.
Dana Chase: So we're seeing an increase in that. But GAO recently had a decision called the already decision. Let me see, it was, ORETT LLC?
Dana Chase: It was issued on the 13th of August of 2025. The B number, and I'll put it into the chat, is, B423524.2.
Dana Chase: So, GA has already addressed this issue of AI and hallucinations in AI. I just think we're going to see more of it and more decisions with regards to people that are not checking their work and submitting work product that has AI hallucinations in it.
Christopher Yukins / GW Law: Thank you very much, Dana.
Christopher Yukins / GW Law: So, the next question has to do with the bonding requirement. This is a suggestion that protesters should post a bond if the procurement is to be stayed pending the protest. So, one of the peculiarities of U.S. federal practice is that the contractors are really… they're fighting forward the opportunity to
Christopher Yukins / GW Law: to compete for a contract after the protest is sustained, or the agency takes corrective action and reopens the competition. In other systems, such as in England.
Christopher Yukins / GW Law: the protesters are actually fighting for damages, potentially, so it's a different kind of fight. But in our system, where the real prize is getting the chance to re-compete.
Christopher Yukins / GW Law: as opposed to getting any sort of damages, the stay of the current… of the contract that was awarded in post-award protests is really important, because that's the only prize available to the protests. So the question is.
Christopher Yukins / GW Law: Whether or not bonds should be… a bonding requirement should be put in place so that the protester comes.
Christopher Yukins / GW Law: to… it'll really be to GAO per… using a… should GAO, using a model like the Court of Federal Claims does, under Rule 65C of the Court of Federal Claims Rules, should the protester be required to
Christopher Yukins / GW Law: Post a bond to compensate the agency and potentially the awardee for any costs incurred as a result of
Christopher Yukins / GW Law: the protest, if the protest is found to be mirrorless. And so, the starting point here, of course, is the established practice under Rule 65C of the Court of Federal Claims, and that's discussed in some detail at the program page. So the first question I have is for the judge. Judge, how commonly are bonds required in Court of Federal Claims protests?
Judge Marian Blank Horn: Not very commonly. There are some times that you do it.
Judge Marian Blank Horn: Certainly, if you think that it's meritless, maybe you might do it, but it isn't typically done. It is a tool available. It's a discretionary tool available to the judge, so the judge has the discretion to issue a bond, and also how much to issue that bond for.
Judge Marian Blank Horn: if we see AI really taking over in a way that Ms. Chase suggests, we do have some weapons other than just the bond. So, we can refer that attorney to a member of his or her bar at the… they are all barred at the state level in this country. And so, we've done, you know, threatened it, done it.
Judge Marian Blank Horn: It's not common yet, but, and we can certainly think about, and we are thinking about, double-checking briefs much more differently than we did in the past.
Judge Marian Blank Horn: for AI. If you have experience in this field, you can spot it a mile off very often.
Judge Marian Blank Horn: and, you know, then would take some action. That becomes a very serious issue for an attorney who's done it, because that could lead to disbarment and not being allowed to practice. So there are some tools,
Judge Marian Blank Horn: other than bonds as well. Will we increase the use of bonds? I don't know. It's something we talk about periodically.
Judge Marian Blank Horn: But again, it's left up to the individual judge. So, it's there, it's in the rules. The rules are a little bit, unclear as to whether you have to
Judge Marian Blank Horn: Do a bond, but remember, if we issued bonds.
Judge Marian Blank Horn: We would have to take more time to establish not only whether a bond was appropriate, but also whether, in what amount to make that bond appropriate. And that will add time to the process, potentially, because we can't just willy-nilly kind of pull it out of the, out of our mind without thinking about it, and we can't just say, well, your bond is going to be 20 this, or
Judge Marian Blank Horn: supporting this. We have to justify why we've done it.
Christopher Yukins / GW Law: Thank you, Judge. And on the program page, I've listed a number of the precedents where the court has addressed that question over the last 25 years or so. And just for the audience, there have been roughly speaking, there's only been one bond decision
Christopher Yukins / GW Law: per year for the 25 years or so that the Court has had this bid protest jurisdiction under the Tucker Act.
Judge Marian Blank Horn: Well, Chris, if I could, I think that's not necessarily reflective of how many bonds, necessarily, because you're generally not going to get a decision on the issuance of a bond. There have definitely been bonds issued that do not get reflected in a reported decision.
Christopher Yukins / GW Law: If I could, just quickly, thank you, Judge, just quickly to Dana, I have a quick technical question for you before we turn to the substantive second question. Dana, is there a way that one could… is… are there tool… electronic tools or online tools that one could use to check for AI hallucinations in a brief?
Dana Chase: Yes, there are commercial programs that can check for AI hallucinations. Westlaw has capability to do that. Lexus has capability to do that. There are other companies that will also check for AI hallucinations and documents.
Christopher Yukins / GW Law: So, if I could ask you the substantive question, Dana, is would it be easier, and this is for Scott as well, perhaps Dana wants to go first, would it be easy to institute a bonding requirement at GAO?
Dana Chase: It would be very difficult, because you'd have to… the contracting officer would have to figure out what, it's going to be worth for a bond, figure out the percentage of the bond, the mechanisms for the bond.
Dana Chase: I'm not sure if GAO can do it fiscally or fiscal law-wise, so it would just be really difficult for the agency to figure out a bonding requirement.
Christopher Yukins / GW Law: Why would there be fiscal issues?
Dana Chase: Well… At least… at least for…
Dana Chase: I'm looking… thinking about augmentation of funds, and I'm not sure, what would happen if the bond, would… how would it go to the agency? Would it be an unlawful augmentation of funds? There'd have to be a bunch of statutes and things put in place for it, so…
Scott Flesch: Chris, there's also just a practical concern here. I mean, in my experience, and I think that maybe the judge can concur on this one.
Scott Flesch: Agencies have a very difficult time
Scott Flesch: Articulating, quantifying the damage that a court-imposed stay creates.
Scott Flesch: You could look at, potentially, the increased funds that are going to be necessary to keep a bridge contract in place, because maybe the new contract is cheaper. But the reality is, is that's extremely difficult, and moreover.
Scott Flesch: it's just… there's no infrastructure within the government to quantify the amount that it's costing the government, because they're mostly sunk costs. There's no excess salaries, there's usually no overtime. They just… it's hard to quantify it.
Christopher Yukins / GW Law: Thank you both.
Christopher Yukins / GW Law: So, I apologize, it looks like we're going to go a little bit over the 60-minute target, but we do have a lot of substantive questions still to address, so we may go, let's say, 10 or 15 minutes over our target 60 minutes.
Christopher Yukins / GW Law: So the next, the next is that there have been proposals for, consistent timelines in protests. GAO and the Court of Federal Claims and Agents Elvo Bid Protests.
Christopher Yukins / GW Law: can be done on very different timelines. Scott, do you think that all protest forums should have consistent timelines?
Scott Flesch: If the rules and the different approaches to protest and the different approaches to the administrative records stay in place.
Scott Flesch: they should have different timelines. They are very different. GAO is generally viewed by the government contractor community as a more express, expedient option.
Scott Flesch: It is viewed as a mechanism to protect the immediate status quo without having to get a court ruling via the automatic state provisions, and that accelerates the process where the agency has to produce that record within 30 days.
Scott Flesch: Of course, if there's a TRO at the court, that could be extremely fast, sometimes even faster than producing the record at GAO, but they're different fora, and contractors right now have options, and options are good.
Scott Flesch: They can choose to go down one path and then the other at the court if it's not a task order. And maybe, Chris, you can mention that as well, just, you know, task orders are treated differently, but
Scott Flesch: They should have different timelines if the four are different.
Christopher Yukins / GW Law: Thanks very much, and just a technical comment. So, we've been getting some comments, some raised hands. If the folks who are raising their hands, if you could post your comments in the chat, be very grateful. It's easy to deal with that. And some folks have been posting excellent questions, to just the hosts.
Christopher Yukins / GW Law: If you could repost those to everyone, the everyone chat then becomes part of the archive that I'll be posting to the program page, and it's really… this becomes a very good resource… research resource for the future.
Christopher Yukins / GW Law: So, Judge, the question I have for you is, would a regular protest… there's no regularized protest timeline in Appendix C to the Court of Federal Claims rules. Each judge is left with discretion to set a scheduling order for individual protests. Would a regular protest timeline like GAO's work at the Court of Federal Claims?
Judge Marian Blank Horn: I think it might be difficult, in part by the nature of contracts that we're seeing being protested at the moment. The government has developed a three-stage protest package, for instance, for longer timelines.
Judge Marian Blank Horn: The contract lasts longer. The numbers are in the billions in some cases. They're very large numbers. If it's a 10-year contract, for instance, the projection is pretty big. And you can actually, protest each stage of a three-stage procurement.
Judge Marian Blank Horn: And yet, we're timelined by the whole case. So, there's a very large difference in the kinds of cases
Judge Marian Blank Horn: We do have our own internal sort of sets of timelines, and we try to keep all the judges to it internally. But it really depends on the case. The administrative records in some of our cases are ginormous.
Judge Marian Blank Horn: If you have 70 protesters, as I have in one… over 70 in one case.
Judge Marian Blank Horn: You're not going to get to the evaluation stage with all 70, obviously, but that means 3 times 70 potential protests in a single case. So, I think you have to be reflective of the nature of the cases that come to the court. We get some small ones, but mostly big ones because of the GAO opportunity at the front end.
Judge Marian Blank Horn: And I think, you know, we try very hard. Most of our judges will ha- will set very early hearings in protest cases to try to figure it out.
Judge Marian Blank Horn: And, as, as Professor Yukon said, in a TRO, we move very quickly. I think there's pressure on us internally as judges to keep it moving.
Judge Marian Blank Horn: And we understand the nature of why that is important, particularly in defense contracts. So, I…
Judge Marian Blank Horn: find it very difficult, I think, to have a 100-day in every case. Now, do we get done with cases in 100 days? Yes, we do. But it depends entirely on the difference of the cases.
Christopher Yukins / GW Law: Thank you, Judge.
Christopher Yukins / GW Law: So the next question goes to enhanced debriefings, and, the… the…
Christopher Yukins / GW Law: by the way, this is another actually really interesting example of using AI, because this is completely created by AI, while it looks very, very genuine. So, the first question I have is for Dana. So, what are the practical obstacles to using enhanced debriefings
Christopher Yukins / GW Law: more broadly, Dana? Could they be used more broadly? See, in this picture here, we see what an enhanced debriefing normally includes, which is a source selection decision that is redacted. What do you think the practical obstacles are, Dana, to using them more broadly?
Dana Chase: I think some of the practical, obstacles are time, time to schedule them, and still resolve issues, at least with the contracting officers and trying to move forward with the procurement.
Dana Chase: being clear about what information can be obtained at an enhanced debriefing, just being clear about what questions can be asked, what information can be obtained. Scott talked about this, you know, having useful information at an enhanced debriefing on how to make the proposal better, better solutions to lower costs.
Dana Chase: And I think there needs to be an understanding of… from the side of the contractor, the offeror, as to what kinds of questions they should ask, and an enhanced debriefing to get the information, for what they're looking for, and also on the agency side of, don't be afraid.
Dana Chase: of debriefings. Provide the information that will make the issues clearer for the offeror as to why they didn't win that award of that contract. So I think there needs to be a balancing there in that space.
Dana Chase: one of the practical obstacles there is just on both sides. One wants information that they might not get to, and the other side, the agency might be afraid of giving away information that they're not supposed to give. And you have to strike that balance.
Christopher Yukins / GW Law: Thank you.
Christopher Yukins / GW Law: So, do enhanced debriefings help reduce protests, Scott? And what did the ABA survey tell us? I'm just going to flip to the next page, which has a list of questions from an ABA survey that was done among the ABA Bid Protest Committee members.
Christopher Yukins / GW Law: in the ABA Public Contract Law Section. If you could talk a little bit about the survey, Scott, and what it tells us about the benefits of debriefings.
Scott Flesch: Yes, thanks, Chris. Aba was extremely accommodating in a very short order to get a survey out to its members, so that is limited. That was to…
Scott Flesch: government contracts, practitioners, lawyers primarily were providing the feedback here, and the results were really not a surprise, at least to me. The general trend of the survey population, showed that enhanced briefings, to the extent they provide meaningful and useful information.
Scott Flesch: That are triggered to provide, information to improve proposals were very well received by incumbents and unsuccessful protesters alike.
Scott Flesch: to the extent that the briefings did not provide any information, this was an interesting note. A few survey responders suggested it actually may increase the risk of a protest, because it almost appeared as if agencies were withholding information purposely.
Scott Flesch: So, the takeaways from those questions related to enhanced debriefings, whether they reduce protests, is more information.
Scott Flesch: Accurate information, material information, and useful information to offerors, yes, will lead to a reduction in protests more likely than not, even amongst incumbents.
Scott Flesch: But if the agencies do not share or appear to be hiding it, it actually increases the likelihood that a contractor's gonna protest.
Scott Flesch: for… if not, the only reason is to get more information. Then they feel like they have to protest to get a record, to be told by the agency why they lost, or why somebody won, to the extent they can under procurement integrity rules and proprietary sensitive information. So.
Scott Flesch: There is that belief that enhanced briefings, to the extent that they're enhanced.
Scott Flesch: and extended, and they help put a pause on, effectively the protest period that an offeror has to rush down to GAO or the Corps to do so, mainly for GAO, yeah, that can definitely lead to a reduction, but it's got to be treated seriously by agencies, and the information has to be shared, and it has to be meaningful.
Christopher Yukins / GW Law: Thanks very much. Scott, there's the… if you could discuss just a little bit about the proposal to, make, under the… under the Revolutionary Fire Overhaul, to make
Christopher Yukins / GW Law: enhanced debriefing automatically available to anyone who brings an agents-level bid protest, and then brings that agents-level bid protest seeking review at a level above the contracting officer.
Scott Flesch: Yeah, so there are 3 deviations currently approved by 3 agencies, with the largest one being GSA. And there were some interesting nuggets in the deviations that are implementing the FAR rewrite under FAR Part 33. The couple things that are, I think, particularly important or noteworthy were that
Scott Flesch: The HCA is required to be immediately notified, and I think that's important because it elevates, once an agency-level protest has been filed, to somebody beyond the contracting officer that conducted the procurement.
Scott Flesch: to tell the HCA that there is an interest here in, via an agency protest, in finding out more information and protesting a perceived slight or violation of procurement statute or regulation.
Scott Flesch: Also, there's a provision in the deviations, and they're the same across the board. They've adopted the model changes, that a redacted source selection decision document automatically be provided.
Scott Flesch: And so that is a good movement towards the exchange of useful and transparent information.
Scott Flesch: As long as it's not redacted to the point that it's not useful. And then there is a provision that, in fact, protesters at the agency level will get an opportunity to comment or produce a writing to the agency protest official, so that they have that opportunity for,
Scott Flesch: advocacy. So these are all useful, I think, changes, across the board to the agency protest process, which should be, utilized. But there's something I thought that was missing in the deviations, and we can talk to that very quickly.
Scott Flesch: There's a dispar… there's a disparate treatment of task order protests amongst agencies, and whether they believe they have the authority to address them.
Scott Flesch: I know firsthand that GSA treats their task order jurisdiction differently than, say, the Army does, or at least half the Army, and that at the agency protest level, whether or not they believe they have the authority to actually even adjudicate an agency-level protest.
Scott Flesch: this should be clarified, and I hope that the far rewrite or legislation addresses this, because last time I checked, task orders were reined in, the protests thereof, to keep the nature of task orders
Scott Flesch: more efficient, to be quicker, and I thought that agency-level protests were meant to do that as well. If you force folks to take task order protests at GAO only.
Scott Flesch: that's not doing a lot to, encourage and foster an expedient resolution of task order protests. Why not open up the aperture at the agency level for task order protests as well? That's missing, and I think it needs to be addressed.
Christopher Yukins / GW Law: Thanks very much, and to a certain extent, I skipped us ahead here, Scott, to discuss agents a little bit of protests.
Christopher Yukins / GW Law: There… so, a report was done for the Administrative Conference of the United States a few years ago, and then, I… I republished that report in the Public Contract Law Journal, laying out… and the point of the report was to say, look, this is what the baseline rule is under FAR 33.103 for agency-level bid protests, but a number of the agencies have gone beyond that and have improved the agency-level bid protest process.
Christopher Yukins / GW Law: Why not take best practices and bring them together?
Christopher Yukins / GW Law: And in some ways, the revolutionary far overhaul, as we've been discussing, reflects that. Brings in, for example, a requirement for enhanced debriefings, which is a redacted version of the source selection document.
Christopher Yukins / GW Law: if a vendor brings an agency level of protest. So we're seeing movement in this area. The question I have for you, I guess, Dana, is.
Christopher Yukins / GW Law: Are agency-level protests a good solution for agencies?
Dana Chase: Yes, they are a good solution for agencies. It's a way to address issues at the lowest level, resolve them quickly, not elevating it to GAO or the Court of Federal Claims and putting together ever more robust records. The Army Materiel Command has an excellent agency-level program.
Dana Chase: And as Scott was talking about with the task orders, they address task orders, at the AMC, agency-level protest in their program. So I think it's a way to keep things,
Dana Chase: at a lower level, not having to escalate it and take additional time, by going to GAO or the Court of Federal Claims to resolve issues.
Christopher Yukins / GW Law: And Dan, the Lieutenant Colonel Bruce Mayo's an Army officer, wrote a piece in our program and published it through the Army on using the AMC model, the Army Material Command model that you've talked about, as a model for the rest of the Defense Department, as a way of improving agents a little bit of protests.
Christopher Yukins / GW Law: So, Scott, where we are right now is, as a practical matter, outside counsel.
Christopher Yukins / GW Law: will often not recommend agency-level bid protests because of the uncertainties. Those steer… there's still clients away… steer clients away towards GAO or the COFC. Do you think agency-level protests are worth reforming?
Scott Flesch: I think they're reforming to standardize them a bit amongst agencies and what they should address. One example is the task order jurisdiction, and setting up a process for higher-level review, and that's been mandated under executive order in the past under prior administrations.
Scott Flesch: I do think reforming to the point where it becomes useful and transparent and meaningful is a good thing.
Scott Flesch: But there's certain aspects of it that do need to be addressed, and that task order jurisdiction is just one.
Christopher Yukins / GW Law: Thanks very much. Do you think that the agent-level protests are likely to increase with, artificial intelligence, Scott?
Scott Flesch: They may, but be careful, just like anything in the use of AI,
Scott Flesch: AI has its limitations and may not be advising the writer or user of the AI that you may not be getting to seek a stay if you go to the agency level first. I'm not sure the nuances are built into AI, but the application of a stay under the Competition and Contracting Act
Scott Flesch: may be told or eradicated if you choose to go to the agency level first. Depends on the case and the timing and the agency's rules, but you may lose that state provision, which is the teeth behind CECA in the GEO protest process.
Christopher Yukins / GW Law: Thank you, Scott.
Christopher Yukins / GW Law: But we're going to turn now to our last section to discuss the percipient AI decisions. With that, I'll turn it over to Brian Goldberg, who, as I mentioned at the outset, actually wrote his thesis on the precipient AI decisions. So, Brian, I'm very, very glad you could join us.
Bryan Goldberg: Thank you, Chris. Good morning, everyone. I'll be talking about Percipient AI case. Next slide, please.
Bryan Goldberg: Here's my standard disclaimer. Next slide, please.
Bryan Goldberg: For with the Precipient AI case, what began as a simple coffee bid protest by a disappointed potential subcontractor eventually became the most significant federal circumin, clarifying Tucker Act bid protest standing in the last 25 years.
Bryan Goldberg: In the interest of time, I'll try to keep the factual background really brief. So, in January 2021, the National Geospatial Intelligence Agency awarded a single award, IDAQ contract called SAFIRE, with an accompanying initial task order to Khaki.
Bryan Goldberg: And then, Precipient AI demanded that NGA force khaki to incorporate its,
Bryan Goldberg: commercial, computer vision software into Khaki's developmental solution.
Bryan Goldberg: And Khaki determined that the existing government legacy software already exceeded, recipient's functionality, and so was not necessary.
Bryan Goldberg: At no point had precipient submitted an offer to that base IDIQ, teamed with another company to submit such an offer, protested the solicitation before it closed, or protested the award of the IDQ or initial task order to khaki.
Bryan Goldberg: Until 2 years later, in January of 2023, when Percipient AI filed a bid protest at Coffsei.
Bryan Goldberg: Now, Coffey eventually dismissed that protest based on the task order bar, but it also had previously denied a motion to dismiss based on lack of standing. Following this dismissal, recipient appealed to the Court of Appeals for the Federal Circuit. Next slide, please.
Bryan Goldberg: So, on appeal, a divided Federal Circuit panel reversed, with the majority finding that precipient had standing as an interested party.
Bryan Goldberg: Thus expanding the previously understood definition of an interested party beyond an actual or prospective bidder whose direct economic interests would be affected by award of a contract or failure to award the contract. In doing so, the majority distinguished the prior 2001 Federal Circuit AFGE case and found the SECA definition
Bryan Goldberg: Of interested party, non-exhaustive.
Bryan Goldberg: In addition, this original Federal Circuit panel majority declined to apply either blue and gold or the task order bar to precipients' protest.
Bryan Goldberg: Precipient had persuaded the Federal Circuit with some novel arguments, including canon against surplusage, downplaying the relevance of interested parties' use in the Brooks Act and CECA, and also something of an instrumentalist policy argument that allowing such standings is the only way to meaningfully enforce
Bryan Goldberg: That statutory commercial item preference.
Bryan Goldberg: The original Federal Circuit panel majority, thus expanded not just the type of parties that could protest under that third subject matter prong of bid protest, jurisdiction, but also when the protests could be brought timing-wise.
Bryan Goldberg: Judge Clevenger wrote an expansive dissenting opinion, noting that such an expansion, permitted potential subcontractors for its first time to bring a bid protests.
Bryan Goldberg: The government petitioned for rehearing en banc, and the petition was granted, and then the question confronting that en banc court was essentially the same as that confronting the AFG court 24 years ago, just with a new fact pattern featuring a disappointed subcontractor plaintiff, and also the commercial item preference and subcontracting preferences in general. Next slide, please.
Bryan Goldberg: So…
Bryan Goldberg: The en bante Court upheld the original Coffey dismissal, decisively reaffirming the AFGE interpretation of the interested party term.
Bryan Goldberg: And holding that the term applied to disappointed bidders only. Parties that could not qualify as an actual or prospective bidder, including disappointed potential subcontractors like Precipient, could therefore not maintain bid protest standing at the Court of Federal Claims, absent two very rare exceptions.
Bryan Goldberg: Although the precipient en bante Court arrived at the same conclusion as the AFG court, it arrived there through a legislative history analysis that was different in both depth and sometimes substance. So where the AFG opinion had about 2 pages of supporting analysis, to arrive at their conclusion that interested party has essentially the CECA definition.
Bryan Goldberg: The embank court gave about 30 pages of legislative history and statutory analysis to say that interested party only has the same meaning as it does in SECA. So…
Bryan Goldberg: there's essentially two major changes over AFGE. First, they went a step further in their legislative history analysis using the old soil doctrine, arguing that interested party as a term brought the old soil of its interpretation into ADRA from both SECA and the Brooks Act.
Bryan Goldberg: And then once they've established that relevancy of CECA and the Brooks Act's legislative history, they looked at both of those to show that
Bryan Goldberg: Congress had considered and rejected disappointed subcontractor standing, when it, coined the interested party term for standing in ADRA.
Bryan Goldberg: So, to keep with that old soil farming analogy, the AFG court kind of scratched it, the legislative history, topsoil, the shovel, and then the en banc precipient court brought out a commercial-grade plow towed by a massive John Deere tractor.
Bryan Goldberg: As another substantive difference with AFG, the en banc precipient opinion omitted the sovereign immunity argument that the AFG court found particularly persuasive, which could be another wider indication of the decline in importance of sovereign immunity in statutory interpretation by federal courts. And at a minimum, it calls into question whether federal courts still construe waivers of sovereign immunity narrowly. And also, the court didn't address
Bryan Goldberg: the arguments considered by the majority that the statutory preference for commercial
Bryan Goldberg: Products and services has some kind of unique status for purposes of standing.
Bryan Goldberg: And then finally, the en banc court, responded to a lot of, recipients.
Bryan Goldberg: novel arguments not raised by AFGE, particularly the, canon against surplusage arguments, noting that previous federal circuit cases findings standing in SECA stay cases and solicitation cancellation cases gave that prong 3 its full meaning without any need to expand interested party, and you can see, the Ramcourse Services Group and Distributed Solutions citations in the notes.
Bryan Goldberg: section of the slides for that.
Bryan Goldberg: And then, in applying this kind of new, clarified standing test to disappoint potential subcontractors, the court found it decisive that the recipient did not and could not have submitted, or, and chose not to submit, any offer or, express interest as a prospective offeror during the initial, IDAQ solicitation.
Bryan Goldberg: Next slide, please.
Bryan Goldberg: So, just one point on the dissent. The dissent really,
Bryan Goldberg: kind of repackaged a lot of the same arguments made by the majority in the original Federal Circuit Panel decision. But the kind of theme to all of them is a concern
Bryan Goldberg: for, fairness and opportunity for meaningful judicial review. And the, the dissent's primary concern is that, they don't really, they didn't really feel that there is a,
Bryan Goldberg: The government or primes would self-police this kind of subcontracting preference without the possibility of judicial review via bid protests on behalf of those subcontractors.
Bryan Goldberg: Next slide, please.
Bryan Goldberg: So, we're kind of all back to where we began, with bid protest standing prior to the initial recipient case. It didn't create really anything new. It just clarified the limits of standing to kind of what the traditional understanding was. A disappointed potential subcontractor wanting to maintain a bid protest
Bryan Goldberg: It's gonna need to generally either find a prime that's going to protest the subcontracting preference issue in a solicitation pre-award, or otherwise find another way to qualify as a prospective bidder and challenge pre-award, such as through a teaming arrangement.
Bryan Goldberg: That's all I have today, thank you, back to you.
Christopher Yukins / GW Law: Thank you very much, Brian. So, we're in a little over time, so I just wanted to give our panelists an opportunity to close out with this, to discuss what they see as possible next steps in bid protest reform. Ken, I wonder if we could start with you.
Kenneth Patton: Absolutely, Chris. I think the next steps have to be for Congress to obtain additional information from the agencies about what particular issues they're concerned with.
Kenneth Patton: Provision for 885 thought to address a perception that contractors were abusing the system, but we don't have any data to substantiate that concern, and
Kenneth Patton: as Scott mentioned, there are many places along the spectrum of a big protest where there could be problems. To the extent that the Congress does have some concerns with regard to the big protest system, it should gather the data to find out
Kenneth Patton: if a problem exists, and where all along that spectrum the problem may exist. So I see that as really the next area that Congress should probably take a look at.
Christopher Yukins / GW Law: Thank you very much, Ken. So, Judge, what do you see as the next area?
Judge Marian Blank Horn: I think that the importance of access to a federal court is an important thing to keep in mind. I do think the rest of the precipitant opinion was pretty predictable. It was a historical kind of review of where things were, and
Judge Marian Blank Horn: and a precedential review. So I don't think that's going to be, on these particular issues where things change through the court system.
Judge Marian Blank Horn: But the court system is looking at, and particularly the Court of Appeals for the Federal Circuit, is looking at some different kinds of things, and I think is open to that. So that's one area of change that's going to come down the line, especially with
Judge Marian Blank Horn: the review and changes that are going to be proposed for the federal acquisition rules in general, and I think you will find that the courts will have to be very active in interpreting new provisions in the FAR.
Judge Marian Blank Horn: in the federal acquisition regulations. And so, I think there's a lot of change coming. It may come in subtle and perhaps, unfortunately, too slow changes where needs, you know, where there's a need to change, but I think we've set ourselves up for looking into the modern practice of how to do acquisitions and procurements, better. I'm optimistic in the system.
Judge Marian Blank Horn: I've been in the system for a long time. I think it is robust. I think the fundamental values that are in the system will remain. Obviously, Congress has a role to play always in revising how we proceed through executive branch, performance and review.
Judge Marian Blank Horn: But, I do think that it is set up for a lot of change in the near future, actually, through the review of the federal acquisition regulations.
Christopher Yukins / GW Law: Thanks very much, Judge. Dana, what do you see as next steps?
Dana Chase: I'm with Judge Horne on this. I think the far rewrite is going to cause a lot of examination on reforms of bid protest.
Dana Chase: And we'll see it once all the new regulations come out with the FAR rewrite. And then additionally, I think we're starting to see some changes with regards to the use of AI, so I think we're gonna see where we're trying to catch up with technology, in decisions, in bid protests.
Christopher Yukins / GW Law: Thanks very much, Ms. Scott.
Scott Flesch: Yeah, I'm hoping that the scrutiny that GAO is seeing in certain elements of the administration don't translate to bid protest reforms.
Scott Flesch: The process needs tweaking, not a hatchet.
Scott Flesch: And we have a very good system, as Judge Horn says, that's very robust, because it promotes transparency and competition, and sets up a level playing field for awful wars, and anything that I think
Scott Flesch: deprives those…
Scott Flesch: the deciderata, right? The transparency, the fairness, everything that undermined… not undermined, I'm sorry, that supported competition of Far Part 6 really needs is to backho behind the protest process system.
Scott Flesch: And we hope that it doesn't tweak to the point where it literally guts it, because the process works, the 2-4 are very different for a reason.
Scott Flesch: And I'm hoping that we don't see substantial changes over the next 12 months.
Christopher Yukins / GW Law: Thank you, Scott. Yeah, as I discussed in the articles that are posted through the, through Government Contractor.
Christopher Yukins / GW Law: There are two key purposes in a bid protest system. One is to encourage competitors to come back in the future by treating them fairly, and the second is to highlight, identify problems in the system, so the bid protest brings those problems to light.
Christopher Yukins / GW Law: And interestingly, the Revolutionary Fire Overhaul, the purposes that are outlined in the Revolutionary Fire Overhaul echo that, and it's very healthy, because there has not been a statement of purposes, a clear statement of purposes before.
Christopher Yukins / GW Law: So, one way to measure these various bid protest reforms, and we've been trying to talk through these, through this hour, is
Christopher Yukins / GW Law: How do proposed reforms measure up against those two key purposes, which is to make sure competitors feel like they're being treated fairly, and the second one.
Christopher Yukins / GW Law: is to bring problems to light. Agents of a bid protests, for example, meet those two purposes very well. So I'm very glad we could have this discussion. Ken, it looks like we've lost Brian, so do you have any final thoughts?
Kenneth Patton: Final thoughts? Well, I think final thoughts would be, I don't think acquisition reform is dead. I think that it's likely going to continue in the near future, and I think that with regard to all the proposed for a rewrite and policy changes that are coming down the pike, we're likely to see a lot of robust protest decisions coming both from GAO and the court.
Christopher Yukins / GW Law: Thank you very much. We've gone way over time, and thank you all very much for your patience. Oh, Brian is here. Brian?
Bryan Goldberg: Sorry, I just regained contact there, sorry about that.
Christopher Yukins / GW Law: No, that's fine, and I was going to ask you about the use of guitars in bid protest decisions, but you could talk about other proposed reforms likely to come down the pike. What do you think, Brian?
Bryan Goldberg: I… I do expect,
Bryan Goldberg: Perhaps, further ways to strengthen the, task order bar, through legislative proposals.
Bryan Goldberg: might be one way that Congress
Bryan Goldberg: tries to tighten things up, because that has, I believe, played a big role in reducing
Bryan Goldberg: the volume of bid protests, but other than that, I think the rest of the panel's kind of hit on the major points. Thank you.
Christopher Yukins / GW Law: Thanks very much. Thank you all, and thank you very much to the audience for your great questions, and again, the chat is going to be posted, the slides will be posted, and as soon as the video is processed by Zoom, it takes about an hour or so, I'll be posting the video as well on the program page. Thank you all, and have a wonderful day.
Christopher Yukins / GW Law: Bye-bye.