U.S. Agency-Level Bid Protest Mechanism: A Model for Bid Challenge Procedures in Developing Nations

摘要

Outside of the successes of a few nations, the progress of procurement reform efforts in developing nations has been slow. Among the least successful initiatives in procurement reform has been the effort to establish mechanisms by which disappointed offerers can challenge the actions of public officials who do not comply with established procurement rules. The decisive question for a developing nation is which of the available structural options best integrates the essential elements of an effective bid protest system in the context of existing legal, political, cultural, and economic circumstances. The answer usually given by the international organizations working on procurement reform is that nations should focus their efforts on developing review bodies that are external to the procuring agencies themselves, as such bodies are more likely to be independent. However, while the 'independence is paramount' perspective is intuitively inviting, it may not be practically expedient for a developing nation. For while independence is a key component of any effective review system, it does not necessarily follow that the relative benefit of increased independence offered by courts and boards outweighs the benefits of speed, efficiency, expertise, and non-adversarialism offered by agency-level review mechanisms. This thesis examines the following topics: the purposes and fundamental requirements of an effective bid protest system, the challenges that developing nations face in attempting to establish protest mechanisms, the bid protest systems enforced by various international public procurement agreements as well as those promoted by the World Bank and UNCITRAL, agency-level bid protest procedures employed in the United States under FAR 31.103, and whether an agency-level review mechanism modeled after the U.S. system can suitably serve as a developing nation's primary forum for resolving bid protests.