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The Army Lawyer | Issue 3 2020View PDF

No. 4: Reforming Bid Protests

Written By
Hannah Zeigler
Tags
2024-05-14
(Credit: istockphoto.com/Gazometr)

(Credit: istockphoto.com/Gazometr)

No. 4

Reforming Bid Protests

By Colonel Eugene Y. Kim

“Litigation is the basic legal right that guarantees every corporation its decade in court.”
—Admiral David Dixon Porter, U.S. Navy

On 25 August 2015, the U.S. Army selected the Oshkosh Corporation for award of a low-rate initial production (LRIP) contract, valued at approximately $6.7 billion, for 16,901 vehicles under the auspices of the Joint Light Tactical Vehicle (JLTV) Program.1 As envisioned, the JLTV Program will eventually provide a family of vehicles that will replace the fleets of High-Mobility Multi-Purpose Wheeled Vehicles (HMMWVs) that are utilized by the U.S. Army and the U.S. Marine Corps.2 The experience of U.S. forces in Iraq and Afghanistan, where the HMMWVs’ vulnerability to improvised explosive devices highlighted the need for a replacement vehicle, demonstrated the importance of the JLTV Program—which was approved by the Joint Requirements Oversight Council of the Department of Defense (DoD) in 2006.3

On 8 September 2015, Lockheed Martin Corporation filed a bid protest with the U.S. Government Accountability Office (GAO) that challenged the LRIP contract award to Oshkosh; Lockheed would later supplement its bid protest with two additional GAO protest filings.4 On 11 December 2015—and before the GAO’s Comptroller General issued a decision on the merits of Lockheed’s protests—Lockheed provided notification that it intended to file another protest, this time with the U.S. Court of Federal Claims (COFC).5 Consistent with its past practice, the GAO dismissed Lockheed’s protests due to the pending litigation before the COFC.6 On 11 February 2016, the COFC denied Lockheed’s request for a temporary restraining order against the LRIP contract award; six days later, Lockheed withdrew its protest from the COFC, which enabled Oshkosh’s performance on the LRIP contract to proceed.7

As a consequence of the multiple bid protests that Lockheed filed with the GAO and the COFC, performance on the LRIP contract was delayed by almost six months.8 This delay has been identified as a primary reason for why the JLTV Program will be unable to achieve its original milestone of initial operating capability (IOC) by mid-2019.9 Of equal significance, all of the time and resources that the government committed to defend the LRIP contract award was rendered substantially moot when Lockheed abandoned its GAO protest and instead sought redress from the COFC, a change that (perhaps not coincidentally) occurred as the statutory deadline for the GAO’s decision was approaching. Even if the GAO had dismissed or denied Lockheed’s protest, Lockheed would not have been precluded from continuing its challenge at the COFC. In the end—and notwithstanding the fact that Lockheed ultimately withdrew its protest from the COFC—the real losers in the LRIP contract award litigation were the American warfighter, who must wait longer for a safer and more capable tactical vehicle, and the American taxpayer, whose constrained resources were further depleted by a system that unnecessarily provided multiple opportunities to challenge the propriety of the award of a critical acquisition.

This article advocates for reforming the COFC’s bid protest jurisdiction, based on two premises: reform is necessary to reduce costly and duplicative litigation (as exemplified by Lockheed’s bid protests before the GAO and the COFC); and reform constitutes “low hanging fruit”10 that can be cultivated in a manner that will still enable protesters to avail themselves of at least two different review fora. An overview is first provided on the three activities that are currently authorized to directly receive and review bid protests—i.e., the procuring agencies, the GAO, and the COFC—followed by a summary of recent initiatives and proposals to reform the COFC’s bid protest jurisdiction; this is in the wake of a growing consensus that the current system promotes neither inexpensive nor expeditious outcomes.11 This article culminates with a recommendation to reform the COFC’s bid protest jurisdiction in a manner that eliminates multiple bites at the proverbial bid protest apple.12

The Bid Protest Fora

The Agencies

Bid protests before procuring agencies, hereinafter referred to as “agency-level protests,” provide protesters with a relatively inexpensive and informal method to have their grievances reviewed. The foundation for the current system of agency-level protests is Executive Order (EO) 12979, which was issued on 25 October 1995 by President William J. Clinton. Pursuant to EO 12979, all executive branch agencies that are “engaged in the procurement of supplies and services”13 are required to establish procedures “for the resolution of protests to the award of their procurement contracts.”14

Executive Order 12979 expressly contemplates that agency-level protests will serve “as an alternative to protests in fora outside the procuring agencies.”15 While EO 12979 empowers agency heads to establish protest procedures that are tailored for their respective departments, EO 12979 also mandates that these procedures adhere to four requirements.16 Agency-level protest procedures must encourage all parties to “use their best efforts to resolve the matter with agency contracting officers.”17 Agency-level protest procedures must also, “to the maximum extent practicable,”18 facilitate the “inexpensive, informal, procedurally simple, and expeditious resolution of protests.”19 In addition, agency-level protest procedures must—under specific conditions—allow for a review “at a level above the contracting officer”20 when a contracting officer’s decision is “alleged to have violated a statute or regulation and, thereby, caused prejudice to the protester.”21 Perhaps most importantly from a tactical litigation perspective, agency-level protest procedures must provide for the prohibition of “award or performance of [a] contract while a timely filed protest is pending before the agency,”22 except in cases where contract award “is justified for urgent and compelling reasons or is determined to be in the best interests of the United States.”23

The requirements of EO 12979 are incorporated in, and supplemented by, the Federal Acquisition Regulation (FAR).24 The intent of EO 12979, i.e., to establish an efficient and effective system for agency-level protests, is reinforced in FAR 33.103 (d), which expressly predicates the FAR’s agency-level protest procedures on the need to “resolve agency protests effectively, to build confidence in the Government’s acquisition system, and to reduce protests outside of the agency.”25

Beyond specifying the procedures that are to be followed for agency-level protests—including timelines for the filing of protests26 and the circumstances under which contract award or performance will be suspended27—the FAR builds upon the due process imperatives of EO 12979 in a number of key respects. For example, agency heads may grant a protester any relief “that could have been recommended by the Comptroller General had the protest been filed with the [GAO]”28 upon a finding “that a solicitation, proposed award, or award does not comply with the requirements of law or regulation.” 29 Agency heads are also authorized to reimburse protestors for the costs of their protest under specific circumstances.30 The FAR also requires agencies to “make their best efforts to resolve agency protests within 35 days after the protest is filed.”31 Furthermore, agencies must provide decisions on protests that are “well-reasoned, and explain the agency position.”32

Although there is a paucity of data with respect to the utilization and effectiveness of agency-level protests across the federal government,33 several inherent advantages of the system have been recognized by the private bar.34 From the perspective of cost, complexity, and timeliness, agency-level protests are relatively inexpensive, simple, and speedy.35 Agency-level protests also allow aggrieved parties to challenge agency decisions without doing so in the public manner that a protest before the GAO or COFC entails.36 In addition, agency-level protests are usually limited to two parties, i.e., the protester and the agency; in contrast, other interested parties have the ability to intervene in protests before the GAO and the COFC.37 A pre-award agency-level protest also has the potential for preserving a protester’s ability to obtain an automatic stay of contract award, but only if the protester chooses to file a subsequent protest with the GAO.38 Although agency-level protests are not completely free of litigation risk for protesters, the system nevertheless provides both protesters and agencies with a simple and expedient method for resolving contract award challenges.39

The U.S. Government Accountability Office

In 1926—five years after it was established as the General Accounting Office—the GAO issued its first written bid protest decision in a case alleging a procurement irregularity that, in substance, would still be familiar to twenty-first century practitioners.40 Presented with a complaint that Panama Canal officials had issued a solicitation for a truck that created an impermissible brand name preference, the GAO—acting, ironically, without express statutory authority—considered and ultimately sustained the protest.41 In the ninety-two years that have followed, the GAO’s bid protest practice has yielded “a uniform body of law applicable to the procurement process upon which the Congress, the courts, agencies, and the public rely.”42

Just as EO 12979 provides the basis for the current system of agency-level protests, the Competition in Contracting Act (CICA) of 1984 constitutes the statutory foundation for the litigation of bid protests before the GAO (hereinafter referred to as “GAO bid protests”).43 The CICA had a significant impact on the bid protest system in multiple respects, not the least of which was the act’s express grant of jurisdiction to the GAO to review bid protests; this constituted statutory authority that the GAO had heretofore lacked since its inception in 1921.44 The CICA also conferred concurrent jurisdiction for bid protests upon the GAO, the U.S. Court of Claims (today’s COFC), the U.S. district courts, and the General Services Administration Board of Contract Appeals; while the latter two fora have since been relieved of this authority for procurements, the GAO and the COFC’s shared jurisdiction over bid protests endures.45 The CICA further required the Comptroller General of the GAO to issue bid protest decisions “within 90 working days,”46 except under certain circumstances. This requirement would later be amended (and made more restrictive) to the current statutory-based deadline of 100 days.47 The CICA also mandated that, “to the maximum extent practicable,”48 the Comptroller General is to “provide for the inexpensive and expeditious resolution of protests . . . .”49 Of particular significance, the CICA enshrined a fundamental principle that has been at the heart of all bid protests that have been considered by the GAO, both prior to and after the enactment of the CICA: the GAO’s decisions constitute only recommendations and, as such, agencies are not required to adhere to them.50 By limiting the ability of a legislative branch official (i.e., the Comptroller General) to affect the actions of executive branch agencies, the CICA prudently avoided a constitutional minefield studded with separation of powers arguments.

In the thirty-five years since the CICA became law, caseload statistics convincingly demonstrate that the GAO is the preferred venue for bid protesters.51 While no specific figure is available for the total number of agency-level protests that were filed during fiscal year 2018 (the most recent fiscal year where data for both the GAO and COFC is available), there were 2,607 bid protests or related cases filed with the GAO; in comparison, there were 171 bid protests filed with the COFC.52 Based on statistics from fiscal years 2003, 2008, 2012, 2014, 2016, and 2017, the GAO’s average annual bid protest caseload was approximately twenty-four to twenty-five times that of the COFC’s.53 The lopsided nature of these statistics is not difficult to explain, particularly when considering the benefits that accrue to bid protesters who choose to file with the GAO versus the COFC.

One of the prime benefits of a GAO bid protest is that it will (when filed and agency notice is provided within specific timelines) trigger an automatic stay of contract award or performance, commonly referred to as a “CICA stay.”54 Bid protests that are filed with the COFC are not entitled to a CICA stay, and, while a protester can request a temporary restraining order or preliminary injunction to stay contract award or performance, the COFC is not required to grant such a request.55 Another advantage of litigating before the GAO is that a bid protester does not have to be represented by an attorney;56 in proceedings before the COFC, a protester must, except under very limited circumstances, be represented by an attorney who is admitted to practice before the COFC.57

From a procedural perspective, a GAO bid protest is much less complex than a bid protest before the COFC; as evidence, the GAO’s Bid Protest Regulations comprise nineteen pages, whereas the COFC’s Rules of Procedure is 113 pages.58 In addition, a GAO bid protest usually does not involve extensive document discovery, and most exchanges between the GAO and litigants can take place via telephone and email; these circumstances combine to make GAO bid protests substantially less costly to litigate when compared to an equivalent case before the COFC.59 Protesters are also assured of a statutorily-required decision by the GAO within 100 days, whereas protesters before the COFC have no such guarantee.60 Therefore, a protester who files with the GAO does not seriously risk enduring protracted delays and, in fact, can pinpoint the latest day on which a decision on the merits will be issued.

From a litigation perspective, there are credible reasons to forego a GAO bid protest in favor of the COFC (which is discussed below). Notwithstanding this circumstance, the robustness of the GAO’s caseload and the procedural benefits that are inherent in its practice strongly suggest that it has been successful in providing an “objective, independent, and impartial forum for the resolution of disputes concerning the award of federal contracts.”61

One of the prime benefits of a GAO bid protest is that it will trigger an automatic stay of contract award or performance

The U.S. Court of Federal Claims

The COFC is the gateway for protesters who seek judicial review of their challenge.62 On the litigation spectrum, a bid protest before the COFC (hereinafter referred to as “COFC bid protests”) occupies that end of the spectrum that represents complex and expensive litigation of undetermined duration; agency-level protests occupy the spectrum’s opposite end, and GAO bid protests are ensconced firmly in the middle. Although the vast majority of bid protests that are filed annually are bound for the GAO, the COFC’s bid protest caseload has nevertheless increased steadily over the last fifteen years;63 this can, at least in part, be attributed to the unique statutory authorities that the COFC possesses.

For the COFC, the seminal equivalent of EO 12979 and the CICA is the Tucker Act, which was enacted in 1887 and has been periodically amended since.64 Prior to the passage of the Tucker Act, the U.S. government was generally shielded from claims under the principle of sovereign immunity, which holds that, in the absence of an express waiver, liability cannot attach to sovereign entities.65 The Tucker Act waived the U.S. government’s sovereignty immunity for specific types of claims and assigned jurisdiction for these claims to the COFC, which had been established in 1855 as the U.S. Court of Claims, and U.S. district courts.66 As originally enacted, the Tucker Act authorized U.S. district courts and the COFC to review “all claims founded . . . upon any contract, express or implied, with the Government of the United States;”67 herein lies the COFC’s statutory authority to adjudicate bid protests.

The COFC’s bid protest jurisdiction under the Tucker Act has been significantly altered during the last forty years by a variety of federal laws that have broadened and clarified the scope of the COFC’s authority.68 Of note, the Federal Courts Improvement Act of 1982 empowered the COFC with the discretion to grant “complete relief on any contract claim brought before the contract is awarded.”69 This confirmed the COFC’s ability to stay the government’s ability to award a contract through the issuance of an injunction, a powerful authority that continues to be a significant tactical consideration when choosing a bid protest forum.70 The COFC’s bid protest jurisdiction was also enhanced by the Administrative Disputes Resolution Act (ADRA) of 1996, which reinforced the COFC’s authority to review both pre- and post-award bid protests.71 Of equal importance, the ADRA contained a “sunset”72 provision that resulted in the removal of bid protest jurisdiction from U.S. district courts on 1 January 2001,73 leaving the COFC as the only judicial forum in the United States that may directly receive and consider a bid protest of a procurement action.74

Although an aggrieved party generally has to commit more resources towards a COFC bid protest than would otherwise be required for an agency-level or GAO bid protest, the pursuit of a judicial remedy provides protesters with several distinct advantages. Unlike cases involving GAO decisions, agencies are legally bound to follow the COFC’s decisions; although agencies seldom fail to follow the Comptroller General’s recommendations, the COFC’s ability to compel agency acquiescence provides an incentive for protesters to file with the court.75 Agencies are also required to divulge more documents in response to a COFC bid protest which, in turn, enhances the ability of protesters to obtain information that they feel is relevant to their claims.76 In contrast to the GAO—which is statutorily constrained to use “inexpensive and expeditious”77 procedures and, as a result, does not usually require the government to engage in extensive document production beyond an “agency report”78—a COFC bid protest will require an agency to submit an “administrative record”79 that may include up to twenty-one types of “core documents.”80 Afterward, the COFC can order an agency to supplement the administrative record with additional documents.81

The most enticing advantage of a COFC bid protest is that, since protests before an agency and/or the GAO do not normally preclude a protester from seeking relief from the COFC, a previously unsuccessful protester is provided with yet another opportunity to challenge a contract award.82 This provides protesters with an invaluable litigation advantage. Beyond facilitating another opportunity to challenge a contract award, a COFC bid protest subjects an agency’s procurement process to increased third-party scrutiny, thereby increasing the possibility that a procedural or substantive defect (whether relevant to the merits of the protest or not) is discovered. This, in turn, increases the likelihood that the agency will (either on its own initiative, or by the COFC’s direction) take corrective action, thereby resulting in a de facto victory for the protester.

Despite the unique procedural advantages that protesters enjoy when they file with the COFC, the GAO’s consistent and overwhelming popularity as a bid protest forum calls into question the necessity for a third bid protest forum. The need to reform the COFC’s bid protest jurisdiction becomes more acute when considering the costs that agencies must incur, especially in terms of the additional resources that are expended in support of complex defensive litigation, and the delays in the procurement of goods and services that can occur while a COFC bid protest is pending.83 As explained in greater detail below, the need to reform the COFC’s bid protest jurisdiction for the overall benefit of the procurement system has led to a series of initiatives and proposals that merit serious reflection.

Recent Initiatives and Proposals to Reform Bid Protest Jurisdiction

In recent years, the DoD has undertaken several attempts to reform the COFC’s bid protest jurisdiction.84 These initiatives have come in the form of a series of legislative proposals that the DoD has submitted for Congress’s consideration for inclusion in the annual National Defense Authorization Act (NDAA).85 The DoD’s initial attempt to reform the COFC’s bid protest jurisdiction occurred in 2012 and was contained in a legislative proposal for the 2013 NDAA. Under this proposal, the COFC’s statutory authority to review bid protests would have been amended to include a ten-day filing deadline for post-award bid protests.86 Because the GAO has a similar filing deadline, the DoD’s 2013 NDAA legislative proposal would have essentially precluded COFC jurisdiction over bid protests that had been previously litigated at the GAO.87 Congress did not adopt the DoD’s 2013 NDAA legislative proposal, nor did it adopt a similar recommendation for the 2014 NDAA.88 As recently as 2018 and 2019, there have been unsuccessful attempts to legislate a ten-day filing deadline for post-award bid protests submitted to the COFC.89

The subject of the COFC’s bid protest jurisdiction, as it pertains to the issue of multiple bid protest fora, has also generated persuasive proposals for reform in recent academic and professional publications.90 Of note, in an article published in the January 2016 edition of the Army Lawyer, U.S. Air Force Major (now-Lieutenant Colonel (LtCol)) T. Aaron Finley suggested that the DoD’s legislative proposal for a ten-day filing deadline for post-award bid protests at the COFC be changed in three respects.91 Lieutenant Colonel Finley proposed that the filing deadline be tolled in cases where an agency does not follow the Comptroller General’s recommendation. 92 Lieutenant Colonel Finley also focused on the process whereby a bid protester seeks reconsideration by the GAO of an earlier decision; he proposed a new requirement under which a higher-level GAO attorney would perform the reconsideration action.93 Lieutenant Colonel Finley also advocated for enlarging the proposed filing deadline from ten to thirty days, since the shorter period could potentially “prove too brief for [the COFC’s] more formal and rigorous filing requirements” 94 while “a thirty-day deadline would provide for a more achievable compromise.” 95 Although this article will offer a recommendation that does not incorporate all of LtCol Finley’s recommendations, his analysis and anticipated result (i.e., ending multiple-bites of the bid protest apple) are, nevertheless, more than worthy of favorable consideration. 96

The most recent—and by far the strongest—recommendations for reforming the COFC’s bid protest jurisdiction have been advanced by the “Section 809 Panel,”97 an advisory group established under Section 809 of the 2016 NDAA for the purpose of providing recommendations on “streamlining acquisition regulations.”98 Consistent with its statutory mandate, the Section 809 Panel examined the bid protest system and, in particular, the issue of multiple bid protest fora. 99 The Section 809 Panel considered the results of a congressionally-authorized RAND study on bid protests that was issued in 2018,100 as well as input from “stakeholders” 101 that included private and corporate attorneys, the American Bar Association, government attorneys representing the DoD and other agencies, the GAO, and the COFC.102 On 15 January 2019, the Section 809 Panel issued the third volume of its final report to Congress (hereinafter the “Section 809 Panel Report”); this volume contained two recommendations on the COFC’s bid protest jurisdiction, entitled “Recommendation 67”103 and “Recommendation 68.”104

Under Recommendation 67, the Section 809 Panel called for “eliminating the opportunity to file a protest with the COFC after filing at the GAO” 105 and also for requiring the COFC “to issue a decision within 100 days of ordering a procurement be delayed.” 106 The Section 809 Panel noted that the “expeditious resolution” 107 of a bid protest at the GAO cannot occur “if that resolution can be re-litigated at a separate forum [i.e., the COFC] that is not obligated to give any deference to GAO’s findings.”108 The Section 809 Panel also noted that, by requiring the COFC to follow the same 100-day decision deadline standard that the GAO is held to, the COFC would “meet its mandate for expeditious resolution, but only when the Court has ordered a procurement be stayed pending resolution of the action.”109 Recommendation 67 is a direct reflection of the Section 809 Panel’s conclusion that, “For GAO to achieve its statutory purpose, the opportunity for a second protest opportunity at COFC must be eliminated.” 110

Under Recommendation 68, the Section 809 Panel advocated limiting the jurisdiction of both the GAO and the COFC “to only those protests of procurements with a value that exceeds, or are expected to exceed, $75,000.”111 The Section 809 Panel observed that slightly over ten percent of GAO bid protests and approximately four percent of COFC protests involved procurements valued at under $100,000.112 In highlighting a recent GAO bid protest where the procurement in dispute was valued at $8,000, the Section 809 Panel observed that, in cases involving very low dollar amounts, it was “difficult to understand how the value, in terms of transparency, outweighs the cost of resolving them.”113 By linking bid protest jurisdiction to a $75,000 threshold (a figure based on an earlier recommendation to elevate the publicizing threshold), the Section 809 Panel concluded that Recommendation 68 would prevent low dollar value bid protests at the GAO and the COFC “which consume time, resources, and taxpayer dollars that could be reinvested in delivering capability to warfighters.”114

The bid protest system is absolutely critical to the continued maintenance of private- and public-sector confidence in the integrity of the U.S. federal acquisition system

Recommendation for Reform

The bid protest system is absolutely critical to the continued maintenance of private- and public-sector confidence in the integrity of the U.S. federal acquisition system. Central to this confidence is the availability of due process for aggrieved parties, in the form of access to either a non-judicial forum (e.g., procuring agencies and the GAO) or a judicial forum (i.e., the COFC). However—and as noted by the Section 809 Panel—“a bid protest, or the threat of a protest, does delay and add costs to DoD procurement, disrupting the delivery of needed products and services to warfighters.”115

The adverse impact of bid protests is exacerbated by the practice of consecutive protests before the GAO and the COFC, a process that the Section 809 Panel has described as “not expeditious,”116 “costly to all parties involved,”117 and, in certain cases, providing “no added value to the system by way of additional accountability.” 118 Recent statistical data strongly suggests that Army procurements are increasingly being subjected to consecutive protests at the GAO and the COFC. For example, in fiscal year 2017, more than sixty-five percent of protests filed with the COFC had previously been litigated at the GAO; in fiscal year 2019, that percentage had increased to over ninety-two.119 These compelling statistics—coupled with the Section 809 Panel’s recommendations—provide ample support to the proposition that reforming the COFC’s bid protest jurisdiction is necessary to promote the efficiency and effectiveness of the bid protest process.

Central to any reformation of the COFC’s bid protest is the federal statute wherein the COFC derives its bid jurisdiction (Title 28 of the United States Code, Section 1491 (28 U.S.C. § 1491)); this statute should be amended to expressly preclude COFC jurisdiction in cases where a GAO bid protest has been filed (hereinafter referred to as an “either-or” rule). Although the proposed either-or rule differs in procedure from the filing deadlines advanced in the DoD’s legislative proposals, LtCol Finley’s recommendation, and the Section 809 Panel Report’s Recommendation 67, the practical result is the same: bid protesters would be required to make a forum election—either the GAO or the COFC—at the outset of a protest and would be prevented from engaging in repetitive litigation at the COFC following a GAO bid protest. The proposed either-or rule would still preserve a protester’s ability to file multiple protests, e.g., a protester would be able to file a protest with the agency and, if satisfaction is not received, protest again to either the GAO or the COFC. The proposed either-or rule would also preserve a protester’s ability to obtain judicial-level review of their dispute. A final benefit of the proposed either-or rule is that it would provide agencies with a much-needed degree of confidence in the finality of GAO bid protests.

Conclusion

The problem of multiple bid protest fora is low-hanging fruit that is ripe for a solution. Reforming the COFC’s bid protest jurisdiction is the most direct and effective means for significantly curtailing the time-consuming and resource-draining practice of back-to-back-to-back bid protests at agencies, the GAO, and the COFC. Furnished with extensively-researched and deliberately-considered recommendations from the DoD and the Section 809 Panel, the executive and legislative branches should capitalize on the current spirit of acquisition reform and purge the bid protest system of unnecessary procedures that only serve to facilitate costly, protracted, and repetitive litigation. Absent such decisive action, the American warfighter and the American taxpayer will continue to pay a high price for every bite of the bid protest apple. TAL

COL Kim is the chief of the Contract and Fiscal Law Division, U.S. Army Legal Services Agency, Fort Belvoir, Virginia.

Notes

1. Andrew Feickert, Joint Light Tactical Vehicle: Background and Issues for Congress 4 (Congressional Research Service) (2020).

2. Id. at 1.

3. Id.

4. See Lockheed Martin Corporation, B-412056 et al. (Comp. Gen. Dec. 15, 2015).

5. Id. at 2. See also Feickert, supra note 1, at 5.

6. Feickert, supra note 1, at 5. See also GAO Bid Protest Regulations-Effect of Judicial Proceedings, 4 C.F.R. § 21.11.

7. Feickert, supra note 1, at 5.

8. Feickert, supra note 1, at 6.

9. Id. The first delivery of JLTVs to Army units occurred in January 2019. See Major Pete Bogart, Army’s Newest Vehicle Delivered to Soldiers at Fort Stewart, U.S. Army (28 Jan. 2019), https://www.army.mil/article/216679/armys_newest_vehicle_delivered_to_soldiers_at_fort_stewart.

10. See Low-hanging fruit, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/low-hanging%20fruit (last visited Jan. 27, 2020) (defining low-hanging fruit as the obvious or easy things that can be most readily done or dealt with in achieving success or making progress toward an objective).

11. See 3 David A. Drabkin et al., Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations 354 (2019), https://discover.dtic.mil/wp-content/uploads/809-Panel-2019/Volume3/Sec809Panel_Vol3-Report_Jan2019_part-1_0509.pdf [hereinafter Section 809 Panel Report].

12. For an example of how the apple metaphor has been applied to the issue of multiple bid protest fora, see Major T. Aaron Finley, Once Bitten, Twice Shy: How the Department of Defense Should Finally Ends its Relationship with the Court of Federal Claims Second Bite of the Apple Bid Protests, Army Law., Jan. 2016, at 6, 15.

13. Exec. Order No. 12979, 60 Fed. Reg. 55, 171 (Oct. 25, 1995).

14. Id.

15. Id.

16. Id.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. Id.

24. The Federal Acquisition Regulation (FAR) is codified in Title 48 of the United States Code of Federal Regulations. See 48 C.F.R. §§ 1.000-9905.506-63 (2016).

25. See id. § 33.103 (d).

26. See e.g., id. § 33.103 (e). Protests based on alleged apparent improprieties in a solicitation shall be filed before bid opening or the closing date for receipt of proposals. In all other cases, protests shall be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. Under 48 C.F.R. §33.103 (e), agencies are, under certain circumstances, also authorized to “consider the merits of any protest which is not timely filed.” Id.

27. See e.g., id. §33.103 (f), which establishes procedures for suspending contract award or performance under both pre-award and post-award circumstances.

28. Id.

29. See id. § 33.102 (b)(1).

30. See id. § 33.102 (b)(2); see also id. § 33.104 (h).

31. See id. § 33.102 (g).

32. See id. § 33.102 (h).

33. See David H. Carpenter & Moshe Schwartz, Cong. Research Serv., R45080, Government Contract Bid Protests: Analysis of Legal Processes and Recent Developments 3 (2018).

34. See James Tucker, A Road Less Traveled: Agency-Level Protests, Morrison Foerster (Sept. 26, 2016), http://govcon.mofo.com/protests-litigation/agency-level-protests/.

35. Id.

36. Id.

37. Id.

38. Id.

39. Id.

40. See Daniel I. Gordon, Bid Protests: The Costs are Real, But the Benefits Outweigh Them, 42 Pub. Contract L.J. 3, (Spring 2013), www.jstor.org/stable/24430286. Prior to issuing its decision in the Panama Canal case, the Government Accountability Office (GAO) had considered an unrelated protest filed by the English Construction Company that alleged “unfair and unequal treatment of all the other bidders.” See Section 809 Panel Report, supra note 11 (citing Daniel I. Gordon, In the Beginning: The Earliest Bid Protests Filed with the U.S. General Accounting Office, 13 Pub. Procurement L. Rev. 147, 156 (2004)). As a consequence of the English Construction Company’s protest – which was ultimately dismissed—the GAO concluded it possessed jurisdiction over bid protests based on its “authority to give advance decisions to certifying and disbursing officers on the legality of payments.” Id.

41. Id.

42. 4 U.S. Gov’t Accountability Office, GAO-18-510SP, Bid Protests at GAO: A Descriptive Guide, at 1-71 (10th ed. 2018) [hereinafter GAO Descriptive Guide].

43. Competition in Contracting Act, Pub. L. No. 98-369, 98 Stat. 1175, 1182 (1984) [hereinafter CICA]. See also Carpenter and Schwartz, supra note 33, at 1, 4; Gordon, supra note 40, at 6.

44. CICA, supra note 43, § 1199.

45. See id. § 1182-1183; see also 28 U.S.C. § 1491 (1998); 31 U.S.C. §3554 (2011).

46. CICA, supra note 43 § 1201.

47. See 31 U.S.C. §3552(a)(1). As originally enacted, CICA permitted a “longer period” for bid protest decisions if the Comptroller General provided a written determination that specified the reasons that necessitated additional time. See CICA, supra note 43. The Comptroller General no longer has this authority. See 31 U.S.C. § 3552(a)(1).

48. See CICA, supra note 43. See also 31 U.S.C. §3552(a)(1).

49. Id.

50. See CICA, supra note 43. See also 31 U.S.C. §3552(b)(1), (c)(1).

51. See Carpenter & Schwartz, supra note 33, at 2.

52. Id. See also GAO Bid Protest Annual Report to Congress for Fiscal Year 2018, B-158766 (Comp. Gen. Nov. 27, 2018), https://www.gao.gov/assets/700/695707.pdf; Statistical Report for the Fiscal Year October 1, 2017-September 30, 2018, U.S. Fed. Cl (Oct. 29, 2018), https://www.uscfc.uscourts.gov/sites/default/files/Statistical%20Report%20for%20FY2018.pdf.

53. See, Contract & Fiscal Law Dep’t, The Judge Advocate Gen.’s Legal Ctr. & Sch., U.S. Army, Contract Attorneys Deskbook (2018) [hereinafter Contract Attorneys Deskbook]; GAO Bid Protest Statistics for Fiscal Years 2003-2007, B-158766, encl. (Comp. Gen. Dec. 10, 2007); GAO Bid Protest Statistics for Fiscal Years 2008-2012, B-158766, encl. (Comp. Gen. Nov. 13, 2012); GAO Bid Protest Statistics for Fiscal Years 2013-2017, B-158766, encl. (Comp. Gen. Nov. 13, 2017); Adam Lasky, Roadmap to Bid Protests at the U.S. Court of Federal Claims, Oles Morrison (Feb. 13, 2018), https://www.oles.com/blog/roadmap-to-bid-protests-at-the-u-s-court-of-federal-claims/. According to Mr. Lasky, the “GAO handles approximately twenty-five time as many protests per year as the COFC.” Id.

54. See CICA, supra note 43, §§ 1200-1201. See also 31 U.S.C. §3553.

55. See Carpenter & Schwartz, supra note 33, at 9.

56. See GAO Descriptive Guide, supra note 42, at 4.

57. See Fed. Cl. R. 83.1(c)(1) (2019) [hereinafter Fed. Cl. Rules].

58. See GAO Descriptive Guide, supra note 42, at 31-49. See also Fed. Cl. Rules, supra note 57, at 1-114. The figures cited for both the GAO’s Bid Protest Regulations and the Rules of the COFC are exclusive of appendices. In their entirety (to include appendices), the GAO Descriptive Guide (which includes the GAO’s Bid Protest Regulations) is 72 pages, while the Fed. Cl. Rules is 232 pages.

59. See Carpenter & Schwartz, supra note 33, at 10.

60. Id. See also Dave Nadler, Top Ten Things Every Government Contractor Should Know About Bid Protests, ACC (Nov. 7, 2013), https://www.acc.com/resource-library/top-ten-things-every-government-contractor-should-know-about-bid-protests.

61. See GAO Descriptive Guide, supra note 42, at 4.

62. See Government Contract Bid Protests, supra note 33, at 8.

63. See Lasky, supra note 53.

64. See 28 U.S.C. § 1491. See also Contract Attorneys Deskbook, supra note 53, at 18B-4; United States Court of Federal Claims: The People’s Court, U.S. Fed. Cl., https://www.uscfc.uscourts.gov/sites/default/files/USCFC%20Court%20History%20Brochure_1_0.pdf (last visited Oct. 16, 2019) [hereinafter The People’s Court].

65. See Tucker Act of 1887, Legal Info. Inst., https://www.law.cornell.edu/wex/tucker_act (last visited Oct. 16, 2019).

66. Id. See also The People’s Court, supra note 64. The Fed. Cl. has had three different names: the United States Court of Claims (1855 to 1982), the United States Claims Court (1982-1992), and the United States Court of Federal Claims (1992 to the present). Id.

67. See 28 U.S.C. § 1491.

68. See Contract Attorneys Deskbook, supra note 53, at 18A-35.

69. Court of Appeals for the Federal Circuit Act of 1981, Pub. L. No. 97-164, 96 Stat. 25, 40 (1982).

70. See Contract Attorneys Deskbook, supra note 53, at 18A-35.

71. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3870, 3874, 3875 (1996). See also Contract Attorneys Deskbook, supra note 53.

72. See Administrative Dispute Resolution Act of 1996, Pub. L. No. 104-320, 110 Stat. 3875 (1996).

73.Id. See also Contract Attorneys Deskbook, supra note 53, at 18A-35.

74. See Carpenter & Schwartz, supra note 33, at 8.

75. Id. at 7.

76. Id. at 11.

77. See CICA, supra note 46.

78. See GAO Descriptive Guide, supra note 42, at 36.

79. See Fed. Cl. Rules, supra note 57, at app. C, ¶ 21.

80. See Fed. Cl. Rules, supra note 57, at app. C, ¶ 22 (a)-(u).

81. See Lasky, supra note 53 (citing E-Mgmt. Consultants, Inc. v. United States, 84 Fed.Cl.1, 11 (2008)).

82. See Carpenter & Schwartz, supra note 33, at 11.

83. See Finley, supra note 12, at 15.

84. Id. at 7, 9.

85. Id.

86. Id.

87. Id.

88. Id. at 10.

89. See National Defense Authorization Act for Fiscal Year 2020, S. 1215, 116th Cong. § 831 (2019). See also Jared Serbu, Pentagon Seeks to Limit Bid Protests in Federal Court, Fed. News Network (May 4, 2018), https://federalnewsnetwork.com/defense-main/2018/05/pentagon-seeks-to-limit-bid-protests-in-federal-court/.

90. See, e.g., Finley, supra note 12; Section 809 Panel Report, supra note 11.

91. See Finley, supra note 12, at 6.

92. Id. at 12-13.

93. Id. at 13-14.

94. Id. at 14.

95. Id.

96. Id. at 15.

97. See Section 809 Panel Report, supra note 11, at iii.

98. See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-92, § 809, 129 Stat. 726 (2016).

99. See Section 809 Panel Report, supra note 11, at 340-360.

100. See id. at 340.

101. Id.

102. Id.

103. See id. at 345.

104. See id. at 355.

105. See id. at 345.

106. Id.

107. See id. at 354.

108. Id.

109. Id.

110. See id. at 346.

111. See id.

112. See id. at 355-356.

113. See id. at 357.

114. Id.

115. See id. at 354.

116. Id.

117. Id.

118. Id.

119. Interview with Scott N. Flesch, Chief, Bid Protests, Contract and Fiscal Law Division, U.S. Army Legal Services Agency, at Fort Belvoir, Virginia. (Nov. 12, 2019).