Federal Computer Protests: The New Law

Aug. 8 marked an important milestone in the history of federal automatic data processing equipment procurements. On this day, the repeal of the Brooks Act went into effect. No longer does the General Services Board of Contract Appeals have jurisdiction of all ADPE bid protests. Instead, ADPE contractors now have the same bid protest options as other federal contractors do. What are those options?

The Agency

An objection to an award can be addressed to the procuring agency itself. Of all protest options, an agency protest is least likely to antagonize the agency because it does not trigger oversight by an outside body. For this reason, it is a favorite means of protest before a source selection has been made. An agency protest also is relatively inexpensive since, in many cases, nothing beyond the original protest letter is required or permitted.

On the other hand, an agency protest can only be successful if the protested agency makes an effort to look into the matter. In many cases a contracting officer will deny an agency protest without even referring it to his supervisor or legal staff.

A few agencies, such as the Army Materiel Command, have developed detailed, fair procedures for agency protests, including higher-level review. The majority of agencies, however, decide agency protests ad hoc. ADPE contractors familiar with GSBCA procedures who experiment with agency protests are very likely to be disappointed.

The General Accounting Office

The GAO hears more than 2,000 bid protests each year. It is the largest bid protest forum. It is estimated that approximately one-third of all large, federal procurements are protested to the GAO. The GAO has jurisdiction over all protests formerly heard at the GSBCA.

As a bid protest forum, the GAO offers some benefits. It follows a set of detailed, well-understood rules.

GAO protests are relatively inexpensive. In the majority of cases, timely GAO protests result in withholding the award or a stay of performance while the protest is pending. The GAO permits outside counsel for a protester to review all agency documents relevant to the protest under protective order, including competitive proposals. The GAO's decision must be rendered within 100 days of when the protest is filed.

But success rates with GAO protests are low. At the GAO, no more than 15 percent of all fully developed protests are sustained. Protests typically are sustained only when the protester establishes an unequivocal violation of procurement law. This is not easy to do, since the GAO does not permit depositions, interrogatories and requests for admissions (discovery). Hearings also are rare. ADPE contractors who have relied on the GSBCA may find that GAO protests are rough justice.

The Federal Courts

Federal courts have jurisdiction of federal contract award controversies. This jurisdiction is divided between the Court of Federal Claims for pre-award protests and the federal district courts for post-award protests.

The judges of the Claims Court are fairly familiar with government contract principles. Many of them permit a liberal amount of discovery, similar to the GSBCA's bid protest practice.

In contrast, few federal district court judges know anything about government contracts law. Discovery practices vary widely. To obtain a stay of contract performance, protesters must satisfy the rigorous standards for a preliminary injunction.

Costs are comparable to that of a GSBCA protest. There is no time limit for bid protests in federal court, and some have dragged on for years. Yet the success rate for protesters in federal court appears to be significantly higher than the success rate at the GAO.

Any decision in an agency or GAO protest may be taken to federal court for judicial review. The courts treat the administrative decision as an expert opinion, but the courts exercise independent judgment.

Therefore, some protesters try the GAO first, but then shift to federal court if the GAO's decision is unsatisfactory. It is likely that many ADPE contractors will use this strategy.

Special Tribunals

There are several special tribunals and procedures for specific types of award controversies, including the Small Business Administration, Department of Labor and the Justice Department. None of these special tribunals should be overlooked.

There is no doubt that with the repeal of the Brooks Act, ADPE contractors have lost a valuable means for scrutinizing award decisions.

Yet other options remain. The right option for each protester depends on the nature of the protest issues, the stage of the procurement, the need for discovery to prove the protester's case, whether the protester is the incumbent contractor, and the amount of money at stake.

Alan Grayson is a government contracts attorney in Tysons Corner, Va., who specializes in bid protests for federal contractors.