Agency-Level Bid Protest Reform: Time for a Little Less Efficiency

摘要

The agency-level bid protest mechanism of FAR 33.103' has been a formal part of the government procurement landscape for about eight years now. In large part, the forum has delivered the benefits its architects envisioned. Bid protests to agencies are inexpensive, procedurally simple, and expeditiously resolved. The option's informal and non-adversarial character, which distinguishes it from the other protest flora, has provided incentive for agencies and contractors to openly exchange information and flexibly resolve problems. And yet, for all of its apparent advantages, the agency-level protest option has seen declining use in recent years and still sits squarely in the shadow of the Government Accountability Office's (GAO) bid protest forum. From the time of the forum's inception, observers have maintained it would be more attractive and, hence, see greater use, if the playing field were tilted a bit more toward contractors for example, by guaranteeing contractors a 'stay' of award or performance of protested procurements until their protests are resolved, whether at agency level or in subsequent proceedings at the GAO; by designating high-level agency personnel as protest makers in order to increase the likelihood of independence in decision making; or by providing some form of limited discovery. In practice, however, many, if not most, agencies have developed programs that appear to strike a workable balance between efficiency (high speed, low cost) and fairness (just decision and meaningful relief) such that contractors are annually bringing hundreds of protests to them suggesting that the system is already adequately inviting.