Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
We fur<strong>the</strong>r recommend that <strong>the</strong> authority
<strong>of</strong> <strong>the</strong> contracting <strong>of</strong>ficer and o<strong>the</strong>r <strong>of</strong>ficials to
act in connection with each contract be made
clear to <strong>the</strong> contractor; <strong>the</strong> present distinction
between "breach <strong>of</strong> contract" disputes and
disputes arising "under <strong>the</strong> contract" be abolished;
<strong>the</strong> time periods for seeking review <strong>of</strong>
adverse administrative decisions be uniform
and relatively short; interest be paid on all
claims awarded by administrative and judicial
forums; and court judgments on contract
claims adverse to <strong>the</strong> Government be paid from
agency appropriations.
These recommendations are presented as a
"package" approach to achieving our objectives.
Some <strong>of</strong> <strong>the</strong> recommendations serve more
than one objective. For example, <strong>the</strong> recommendation
to pay interest when a contractor
obtains a favorable board or court decision is
intended to make it whole for <strong>the</strong> expense <strong>of</strong>
obtaining what was rightfully due it. But it
also represents a cost to <strong>the</strong> agency that should
make <strong>the</strong> agency more management conscious
about disputes, and thus cause <strong>the</strong> agency to
improve its contract administration, as well as
consider <strong>the</strong> possibilities <strong>of</strong> a fair and equitable
settlement through negotiation.
We do not say ·that every recommendation
is necessary in order to achieve <strong>the</strong> obj ectives
described above, or that some adjustments in
<strong>the</strong> recommendations would be fatal to <strong>the</strong>
objectives. It will be important, however, to
consider <strong>the</strong> individual recommendations in context
with each o<strong>the</strong>r and <strong>the</strong> stated objectives,
and to balance <strong>the</strong> effect <strong>of</strong> excising one or
more <strong>of</strong> <strong>the</strong> recommendations. Should some
recommendations be adopted and o<strong>the</strong>rs not,
<strong>the</strong> balance designed in <strong>the</strong> recommended system
could be disturbed to <strong>the</strong> detriment <strong>of</strong> its
efficient and fair operation.
Our recommendations dealing with <strong>the</strong> resolution
<strong>of</strong> disputes arising in connection with
contract performance are discussed in detail
in Chapter 2.
DISPUTES RELATED TO THE
AWARD OF CONTRACTS
The Present System
Disputes also occur during <strong>the</strong> process that
leads to <strong>the</strong> award <strong>of</strong> a Government contract.
These disputes are called "award protests"
and may be defined as complaints lodged by
interested parties against any part <strong>of</strong> <strong>the</strong> contract
award process. Protests are usually initiated
by a company that has made an <strong>of</strong>fer
for a Government contract or would like to
make an <strong>of</strong>fer. Typical protests have included
allegations that (1) <strong>the</strong> technical evaluation <strong>of</strong>
a proposal was not properly conducted, (2) <strong>the</strong>
type <strong>of</strong> solicitation used was not in accordance
with statutes or regulations, (3) <strong>the</strong> low bidder
was not qualified to perform <strong>the</strong> work, or (4)
<strong>the</strong> bidder who was awarded <strong>the</strong> contract was
not responsive to <strong>the</strong> terms <strong>of</strong> <strong>the</strong> solicitation.
Unlike disputes occurring under a contract,
no clause in <strong>the</strong> solicitation gives <strong>the</strong> <strong>of</strong>feror a
right to protest. Nor is such right found in
any statutory language. The basic executive
procurement regulations and procedures promulgated
by <strong>the</strong> General Accounting Office
(GAO) permit protests against <strong>the</strong> award <strong>of</strong>
a contract to be lodged with <strong>the</strong> agency that
solicited <strong>the</strong> award and with GAO. Protests
also may be filed with U.S. district courts or
<strong>the</strong> Court <strong>of</strong> Claims. This "award protest system"
for resolution <strong>of</strong> disputes related to <strong>the</strong>
award <strong>of</strong> a Government contract is outlined in
figure 3.
PROCURING AGENCY
The executive procurement regulations do
not provide detailed procedures on how a protest
may be lodged with a procuring agency.
They do require contracting <strong>of</strong>ficers to consider
all protests involving <strong>the</strong> award <strong>of</strong> a contract,
whe<strong>the</strong>r submitted before or after award. Unlike
<strong>the</strong> requirements <strong>of</strong> <strong>the</strong> disputes clause,
agency internal regulations govern whe<strong>the</strong>r
contracting <strong>of</strong>ficers will decide protests submitted
to a particular agency. Some agency
regulations require most protests to be decided
at a senior level within <strong>the</strong> agency, while <strong>the</strong>
policy <strong>of</strong> o<strong>the</strong>r agencies is for <strong>the</strong> contracting
<strong>of</strong>ficer to decide all protests unless special considerations
require <strong>the</strong> forwarding <strong>of</strong> particular
protests to higher headquarters.
1 Historically <strong>the</strong>y have been called "bid protests." Since many
protests todaY involve negotiated p rocurements, we have chosen
"award protests" as a more accurate term.
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