Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
be vitally important if follow-on work is to be
obtained. Similarly, a growing dependence on
Government contracting for its source <strong>of</strong> income
may cause a business to seek a contract
in order to keep its plant facilities operating
or its personnel employed. The Government
contract, <strong>the</strong>refore, has for many businessmen
a value that must be measured by more than
<strong>the</strong> pr<strong>of</strong>it that flows directly to a company as
<strong>the</strong> result <strong>of</strong> performing a specific contract.
In addition to serving <strong>the</strong> private interests
<strong>of</strong> individual contractors, award protests may
also serve <strong>the</strong> private interests <strong>of</strong> certain
classes or groups within <strong>the</strong> procurement community.
In this circumstance, <strong>the</strong> award
protest functions as a means to prevent administrative
action thought to be inimical to <strong>the</strong>
long-range interests <strong>of</strong> <strong>the</strong> group lodging <strong>the</strong>
protest!'
There is a public interest in ensuring that
congressional policies requiring competition
and equal access to <strong>the</strong> award process are implemented
by competent men employing sound
procedures. This is tantamount to saying that
<strong>the</strong> system <strong>of</strong> proposal solicitation, evaluation,
and award must have integrity to achieve basic
policies. The Comptroller General <strong>of</strong>ten has
stated that <strong>the</strong> integrity <strong>of</strong> <strong>the</strong> award process
outweighs any particular pecuniary advantage
to <strong>the</strong> Government that may result from an
improper award." The public also has an interest
in ensuring that procuring activities are
capable <strong>of</strong> acting in an effective manner to implement
programs and satisfy public needs.
At times <strong>the</strong> private and public interests in
<strong>the</strong> award process appear to be consistent. Policies
that promote competitive procedures
administered with integrity will necessarily afford
prospective contractors better protection
in securing economic opportunities and give
<strong>the</strong>m little reason to protest <strong>the</strong> administration
<strong>of</strong> <strong>the</strong> award process. Moreover, allowing protests
to be brought to <strong>the</strong> attention <strong>of</strong> Government
<strong>of</strong>ficials develops public confidence that
<strong>the</strong> policies are being properly implemented
and helps eliminate improper management
practices.
On <strong>the</strong> o<strong>the</strong>r hand, at times <strong>the</strong>se interests
12 See, e.{J.. Perkins v. Lukene Steel Co.. 310 U.S. 113(1940);
Lodge 18158, American Federation <strong>of</strong> Gov. Emp. v. Paine. 436 F.2d
882 (D.C. Oir-, 1970). See cleo Contractors A88'n. <strong>of</strong> Eastern Pa. v.
Scc'I'eto/l'Y <strong>of</strong> Labor, 442 F.2d 159 (3d Gil'. 1971).
13 43 Comp. Gen. 268,272 (1963).
If
will seem to be in competition. A procuring
agency's view <strong>of</strong> its mission may <strong>of</strong>ten collide
with private interests in obtaining <strong>the</strong> award
and even <strong>the</strong> public interest in <strong>the</strong> integrity <strong>of</strong>
<strong>the</strong> competitive system. This problem becomes
most apparent and troublesome when a protest
is lodged after a contract has been awarded.
In this situation <strong>the</strong> delay inherent in adjudieating
such protests may, from <strong>the</strong> agency's
view, inhibit a successful completion <strong>of</strong> its
mission. Yet failure to adjudicate legitimate
protests may not only unjustly deprive <strong>the</strong>
rightful recipients <strong>of</strong> <strong>the</strong>ir economic opportunities,
it may lessen future business interest
in bidding on Government contracts.
The purpose <strong>of</strong> this introduction to <strong>the</strong> nature
and function <strong>of</strong> award protests has been
to indicate that complex problems underlie any
analysis- <strong>of</strong> <strong>the</strong> present award protest system.
The following sections describe <strong>the</strong> various
forums and procedures used to resolve award
protests. While we have not found that <strong>the</strong>
present institutional structure <strong>of</strong> <strong>the</strong> award
protest system is in need <strong>of</strong> fundamental modification,
we do recommend that certain procedural
changes be made in order for <strong>the</strong> system
to operate with <strong>the</strong> greatest fairness and efc
fectiveness.
THE PROCURING AGENCY
A protestor may always lodge a protest with
<strong>the</strong> agency that has issued <strong>the</strong> solicitation on
which <strong>the</strong> protest is based. GAO regulations,
in fact, now urge that <strong>the</strong> protestor first seek
resolution <strong>of</strong> its complaint with <strong>the</strong> procuring
agency before it proceeds to GAO." Adjudication
<strong>of</strong> award protests by procuring agencies
is conducted in an informal manner. No hearings
are held, and no right <strong>of</strong> appeal to a
quasi-judicial forum such as a board <strong>of</strong> contract
appeals exists.
Where <strong>the</strong>re has been a written protest, <strong>the</strong>
agency generally makes its decision on <strong>the</strong>
written record compiled from <strong>the</strong> contract file
and any documents submitted to <strong>the</strong> contracting
<strong>of</strong>ficer by parties to <strong>the</strong> protest. The regulations
state that where a protest has been
14 4 CFR § 20.2(a) (1972).
37