![handle is hein.journals/procurlw9 and id is 1 raw text is:
SECTION OF
PUBLIC CONTRACT 'LAW
AMERICAN BAR
ASSOCIATION
Vol. 9, No. 1, October 1973 FEDERAL
Martin J. Harty, Editor, 14227 Georgia Ave.,
No. 104, Silver Spring, Maryland 20906
BID PROTESTS AND THE Court of Ap
PROCUREMENT COMMISSION Scanvell Lab
courts in at le
alternative ho
awards, cithe
Thonia, F. Williamson of the administrative
District of Columbia Bar court's grantimi
throughout tlh
Most of the public debate and discussion concerning the cations even t
portion of the Report of the Commission on Govern- on December
ment Procurement on disputes and remedies has cen- protest proced
tered on the recommendations dealing with disputes the procuring
arising in connection with contract performance.I Less As was the ca
attention has been given to the eight recommendations these procedu
dealing with disputes related to the award of contracts, during the life
or, in a more familiar parlance, bid protests.2 What I However, I
discussion there has been largely has been critical of the the Study G
apparent failure of the Commission to deal with the bid apparent wea
protest problem in a more fundamental way, as it did required corre
with the disputes arising in connection with contract are covered in
performance. these weakne:
areas.5
The Commission bid protest recommendations ad- Perhaps th
mittedly are unspectacular - prinarily ainling toward the complaint:
improvements in the existing system, rather than major time-consuill
change. However, the Commission arrived at the recoin- criticism that
mendations after careful consideration of numerous procuring agei
alternatives, many of which would have brought the sort minimum acc
of major changes advocated by some who have been found widespi
critical of the present bid protest resolving system. These private bar co
alternatives were rejected because, in the judgment of trative forums
the Commission, they were less desirable from an overall tions, presuinl
view than the present system. A brief summary of some the one-sided
of the alternatives, and their weaknesses, may be helpful protests; as w
in understanding why the Commission recommended the complaints cr
present system be retained. mutually confl
Another i
The Existing System decisions, evei
agency was in
The existing system for resolving bid protests was remedy from
undergoing several changes when the Commission's tion of the col
Remedies Studies Group began its studies in the fall of it was charge
1970. 'rhe changes continued to develop during the life got little else.
of the Commission. Basically, a protester had a right to Finally, th
take his protest to either the procuring agency, the proper role in
General Accounting Office (GAO), or both. In addition, out tile studie
by virtue of the February 1970 decision of the U.S.
STATE & LOCAL GOVERNMENT CONTRACTS
Copyright @ 1973 American Bar Association
peals for the District of Columbia in
oratories, Inc. v. Shaj]'r,3 ie federal
ast some circuits were available as a third
rut within which to protest contract
r initially or after receiving an adverse
decision. But the ultimate effect of the
ig standing to protesters remained unclear
e Commission deliberations, and the itnpli-
oday are not fully resolved. Furthermore,
23, 1971, the GAO published new bid
lures designed to improve the GAO's and
agencies' methods of' handling protests.4
se with the Scanwell decision, the impact
res would have on the system was not clear
of the Commission.
transcending this somewhat fluid situation,
roup and the Commission found several
knesses in the bid protest system that
ction. Without going into the details that
the Study Group and Commission reports,
sses can be grouped into three general
e most important of the weaknesses were
s on the one hand that the system was too
ig, and, on the other hand, the conflicting
the systen, at least so far as the role of the
ncies and the GAO was concerned, lacked
eptable due process. The Commission
read suspicion anong contractors and the
ncerning the objectivity of these adminis-
complaints about ex pare commnunica-
)tion of correctness in agency reports, and
Government won-loss record on bid
ell as demands for faster decisions. These
ied out for resolutions that often were
licting.
inportant criticism was that the GAO
n when they indicated that the procuring
error, often failed to provide an adequate
the protester's viewpoint, such as cancella-
itract award, damages, or both. Too often,
d, the protester won on his principle, but
ie question of the GAO's jurisdiction and
deciding bid protests was raised through-
S.
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