Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
United States ruled in 1940 that protestors
have no right (standing) to have <strong>the</strong>ir protests
heard in a court <strong>of</strong> law, because <strong>the</strong> Federal
procurement statutes confer no judicially
enforceable rights on <strong>of</strong>ferors for Government
contracts. Later Supreme Court opinions
broadening <strong>the</strong> concept <strong>of</strong> standing to sue <strong>the</strong>
Government in o<strong>the</strong>r areas not related to Government
contracts have led certain Federal
courts to conclude that protestors also should
have <strong>the</strong> opportunity to be heard.
In contrast to <strong>the</strong> procedure normally required
under <strong>the</strong> disputes clause, no administrative
remedy need be exhausted before a
protest can be lodged in a court <strong>of</strong> law. The
court may conduct a fresh trial <strong>of</strong> <strong>the</strong> evidence
even if <strong>the</strong> protest has been previously considered
by administrative forums. The Federal
district courts can enjoin agency action, including
stopping <strong>the</strong> award or performance <strong>of</strong>
a contract, Or direct <strong>the</strong> award <strong>of</strong> a contract to
a particular party. The Court <strong>of</strong> Claims does
not possess injunctive powers, but it may
award damages to a successful protestor.
Summary <strong>of</strong> Findings
The award protest system, a necessary and
beneficial aspect <strong>of</strong> <strong>the</strong> procurement process,
needs improvement in <strong>the</strong> interest <strong>of</strong> greater
fairness and effectiveness. The major problems
confronting <strong>the</strong> system are (1) an absence <strong>of</strong>
procedures and remedies that will assure fairness
in <strong>the</strong> treatment <strong>of</strong> protestors; (2) delay
in processing protests through <strong>the</strong> administrative
forums; and (3) <strong>the</strong> lack <strong>of</strong> an effective
plan for reducing <strong>the</strong> number <strong>of</strong> protests. At
<strong>the</strong> heart <strong>of</strong> <strong>the</strong>se problems lies <strong>the</strong> absence <strong>of</strong>
a comprehensive, .coordinated, and integrated
regulatory scheme for administrative resolution
and avoidance <strong>of</strong> protests.
FAIRNESS TO PROTESTORS
The value <strong>of</strong> <strong>the</strong> award protest system is
that it provides a means <strong>of</strong> subjecting administrative
decisionmaking to review and <strong>the</strong>reby
acts to assure that Government <strong>of</strong>ficers follow
<strong>the</strong> procedures that have been established in
<strong>the</strong> statutes and regulations governing <strong>the</strong> procurement
process. It also serves to protect <strong>the</strong>
contractor's right to be bargained with fairly
and, in turn, to be provided a remedy when its
rights are infringed. A system that will not
assure a damaged protestor an adequate remedy
unnecessarily creates a lack <strong>of</strong> confidence
in <strong>the</strong> integrity <strong>of</strong> <strong>the</strong> methods by which Government
contracts are awarded.
We have found that <strong>the</strong> system sometimes
operates in that undesirable manner. Procedures
that adequately inform <strong>the</strong> contractor
how, when, and where to lodge protests have
not been established in all cases. The best
means are not always used to assure objective
consideration <strong>of</strong> <strong>the</strong> merits <strong>of</strong> a protest. At
times <strong>the</strong> protestor is not provided with a
compensating remedy although he deserves
one.
Public interests require <strong>the</strong> efficient, economical,
and timely acquisition <strong>of</strong> goods and
services. This strong public interest, it is contended,
<strong>of</strong>ten overrides <strong>the</strong> personal interests
<strong>of</strong> <strong>the</strong> protestor when to dispense a remedy
would unduly delay or increase <strong>the</strong> cost <strong>of</strong> a
procurement. Overlooked, however, is <strong>the</strong>
greater overall benefit that can be gained by
dealing fairly with contractors and encouraging
<strong>the</strong>m to deal with <strong>the</strong> Government in <strong>the</strong>
future.
UNOUE DELAY IN PROCESSING PROTESTS
The award protest, while serving several
valuable functions in Government procurement,
can also disrupt <strong>the</strong> normal flow <strong>of</strong>
events. For example, in order not to prejudice
<strong>the</strong> position <strong>of</strong> a protestor before <strong>the</strong> dispute
is resolved, <strong>the</strong> award process or <strong>the</strong> performance
<strong>of</strong> a contract should be halted when a
protest is lodged. Yet, lengthy delay in <strong>the</strong> adjudication
<strong>of</strong> a protest while <strong>the</strong> procurement
is suspended can seriously impair Government
programs and economically damage contractors
as well.
Although GAO has taken significant steps
that have achieved some reduction in <strong>the</strong> time
needed to adj udicate protests, it is obvious that
<strong>the</strong> problem cannot be solved by one agency
alone. At present no Government-wide coordi-
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