In recent years, the
U.S. Department of Defense (DoD) has been intently focused on what it
considers abuses in the bid protest process at the Government
Accountability Office (GAO) as it tries to manage its risk to its procurement
system and the delivery of its critical capabilities. Until its repeal in
section 886 of the National Defense Authorization Act (NDAA) for Fiscal Year
Congress seemed to share the DoD’s concerns as evidenced through its
legislatively created “loser pays” bid protest pilot program, which it enacted
in section 827 of the fiscal year 2018 NDAA.
However, likely because of a recent RAND Corporation study
that suggested many of the DoD’s concerns about bid protests at the GAO may not actually amount to abuses, Congress seems to
have changed its position about whether bid protests are a cause of
program performance risk for the DoD.
With its repeal of the “loser pays”
provision, the leading questions it is
asking the DoD to investigate regarding bid protests in general, and its
endorsement of a recent report on agency-level bid protest reforms by the
Administrative Conference of the United States (ACUS), Congress seems to be
shepherding the DoD to take a different perspective on bid protests. Specifically, Congress now seems to point the DoD
away from considering bid protests as
causes of risk, toward considering them as a means of risk management
with an agency-level bid protest program as the risk
management tool. The Army Materiel Command’s
(AMC) agency-level bid protest
program would be the DoD’s best model to develop a central agency-level
bid protest program or to standardize the service programs within its purview, as many of the recommended reforms
included in the ACUS report are fully or partially in practice (and
those partially in practice can be fully implemented rather easily).
In an effort to explain why and how the DoD
can use an agency-level bid protest program
as a risk management tool, this article (1) describes the DoD’s current position that bid protest abuses at the GAO
are causing increased program performance risk and the history behind
Congress’s enactment of the “loser pays” bid protest pilot program to help the DoD manage this risk; (2) explains how data in a
recently published RAND study
suggests that the DoD’s concerns regarding bid protest abuse at the GAO may not be completely supported and, therefore,
likely changed Congress’s view towards bid protests as a cause of the DoD’s
risk; (3) explains the likely reasons Congress
seems to be shepherding the DoD to consider a bid protest program as a
risk management tool in its leading inquiries
for the Acquisition Innovation and Research Center (AIRC); (4) explains
how Congress’s endorsement of the ACUS
report on agency-level bid protest reforms signals to the DoD that it thinks an
agency-level bid protest program would be an effective risk management
tool; and (5) suggests that the AMC’s agency-level bid protest program would be
an effective model for the DoD to use as a
risk management tool because many of the ACUS report recommendations are
fully or partially in practice.
For years, the DoD
has intently focused on practices it considers abuses of the GAO’s bid protest system instead of its true concern: the bigger
picture of managing its program performance risk. Before discussing why the DoD
sees the bid protest process at the GAO as an end—rather than a means to an
end—an explanation of a bid protest and a Competition in Contracting Act (CICA)
stay of award/performance is necessary. The term “bid protest” refers to the
written objection by an interested party over a solicitation or award of a
contract by the Federal Government.
Currently, three fora are available to hear these challenges, and reasons for
protesting in each are litigation-strategy dependent. The fora are the Federal
agency soliciting the requirement, the Court of Federal Claims (COFC), and the GAO. Of these
fora, the GAO hears the majority of
reported bid protests, likely due to
two unique characteristics of
a GAO protest: the 100-day decision
and the CICA automatic statutory stay of contract award/performance. The CICA automatic statutory
stay of contract award/performance prevents the Government from awarding
a contract or proceeding to perform a contract after a party has timely filed a
bid protest at the GAO.
The DoD’s concerns in the bid protest
process, specifically the CICA stay at the GAO, have been issues of controversy
in both industry and the DoD for years.
Nonetheless, the DoD—and, until recently, Congress—especially seems to focus on
its concerns with the bid protest process (and arguably bid protests in
general) as a major cause of program performance risk. While there are likely many variations of the
DoD’s concerns as to the bid protest
process at the GAO, some of the most prevalent are that (1) generally bid
protests at the GAO unreasonably slow down or inhibit the DoD’s ability to meet operational or mission needs across the
board, (2) there is an increasing amount
of frivolous bid protests (i.e., challenges without merit) at the GAO
that slow down or inhibit the DoD’s ability to meet operational or mission needs, and (3) incumbent contractors file task
order bid protests at the GAO as a matter of course—instead of for a
valid basis—in order to secure a bridge contract while the procurement is under
a CICA stay.
To combat these practices the DoD
considers abuses, Congress has made efforts (albeit in an incongruent fashion)
to help the DoD manage its program performance risk in recent years. In 2016,
Congress directed the RAND Corporation to
conduct a study to “inform Congress and U.S. defense leaders about the effectiveness of current procurement policies
and processes to reduce bid protests”
in section 885 of the fiscal year 2017 NDAA.
The RAND study was likely a deliberate attempt by Congress to determine
whether the DoD’s concerns in the bid
protest process were truly a cause of increased program performance risk
for the DoD. In section 827 of the fiscal
year 2018 NDAA, however, Congress summarily (and abruptly) imposed what
was essentially a “loser pays” provision before the RAND study was
completed and delivered. The rushed
nature of the addition of this provision suggested that Congress was no
longer interested in analyzing whether the DoD’s concerns regarding the bid
protest process at the GAO were actually a
cause of the DoD’s program performance risk problem; rather, Congress summarily
decided they were. The background and construct of these efforts provide
context for what Congress is likely suggesting
the DoD do to manage risk as the “loser pays” provision has been
For the past couple of years, certain
members of Congress and the DoD have primarily maintained that “frivolous or
unnecessary bid protests are impairing the procurement process,” thereby
unnecessarily delaying the delivery of critical
capabilities within the DoD.
While some of these individuals have gone as far as to argue all bid protests
are “extremely detrimental” to the DoD’s mission, most allege that the
unreasonable delay in capability delivery ostensibly stems from these
“unwarranted” or frivolous bid protests at the GAO.
These individuals believe that these “frivolous” bid protests at the GAO
significantly slow the DoD’s ability procure new weapon systems and services
because of the CICA stay.
Most of the program performance risk
concerns these individuals have seem to originate from their belief that large
defense contractors—usually incumbents—file bid protests at the GAO as a matter
of course when they fail to receive a contract award in order to trigger the
CICA automatic statutory stay. In other
contractors are believed to file bid protests at the GAO for
illegitimate business reasons, such as to continue to work a requirement during
the pendency of the CICA stay or to simply frustrate
the award of a contract to a competitor, regardless of whether there is a valid basis for a bid protest, thereby
slowing the DoD’s procurement process, needlessly delaying capability
delivery, and increasing actual and transactional costs to the DoD.
In the 2016 legislative cycle, the Senate
Armed Services Committee considered adding a
“loser pays” provision to the NDAA for fiscal year 2017 that would
change the GAO’s bid protest process to indirectly help the DoD manage this
specific concern, which the DoD contended increased its program performance
This “loser pays” provision would have required “a large contractor filing a
bid protest on a defense contract with GAO to cover the cost of processing the
protest if all of the elements in the protest
are denied in an opinion issued by GAO.” However, this attempt to add a “loser pays” provision failed in the committee;
instead, Congress created a requirement for “an independent research
entity . . . with appropriate expertise and analytic capability to carry
out a comprehensive study on the prevalence and impact of bid protests on [DoD]
acquisitions . . . .”
Congress required this study, which became the RAND study, to cover, among
[T]he extent and manner in which the bid protest
system affects or is perceived to affect [various
aspects of the procurement process];
. . . .
A description of trends in the number of bid protests filed, . . . the
effectiveness of each forum for contracts and task or delivery orders, and the
rate of such bid protests compared to
contract obligations and the number of contracts[; and]
An analysis of bid protests filed by incumbent
including (A) the rate at which such protesters are awarded bridge contracts
or contract extensions over the period that the protest remains unresolved; and
(B) an assessment of the cost and schedule impact of successful and
unsuccessful bid protests filed by incumbent
contractors on [some] contracts . . . .”
However, before RAND completed
its study and presented it to
Congress on 21 December 2017, a new “loser pays”
pilot program provision was added to section 827 of the fiscal year 2018
To help the DoD manage its risk, Congress
ultimately decided merely to give the DoD a
tool to manage its concern that incumbent contractors are abusing the
bid protest process at the GAO. In the 2018 legislative cycle, Congress
seemingly disregarded the fact that it had recently asked RAND to evaluate the
DoD’s concerns regarding abuses of the GAO bid protest process and decided to
add a “loser pays” provision to deter what it thought were abusive or
frivolous bid protests. As an initial matter, the
GAO had warned Congress in the past that a process to determine whether a bid
protest was frivolous would be
administratively burdensome and would add substantial costs and delay to the protest process.
Nevertheless, among other considered changes,
Congress directed the DoD to craft a pilot program that required large defense contractors that completely
lost in their bid protest challenges to reimburse
the DoD for costs incurred in litigating the protest at the GAO. This “loser pays” provision was designed to
dissuade this perceived automatic (and thus frivolous) bid protest filing
practice by the large defense contractors.
In this most recent “loser pays”
provision, found in section 827 of the NDAA
for fiscal year 2018, Congress required the DoD to “carry out a pilot program to determine the effectiveness of
requiring contractors to reimburse the Department of Defense for costs
incurred in processing covered protests.”
Additionally, Congress directed the DoD to confine this pilot program to bid
protests filed at the GAO between 2 October 2019 and 30 September 2022 by
parties with revenues in excess of $250 million the previous year.
Interestingly, the pilot program’s
omissions suggest that the provision might have been rushed and not fully
considered. Specifically, it ignored those
protests filed at a DoD agency, one of its subordinate military services,
or the COFC.
The pilot program also failed to mention key definitions, such as what
costs the DoD could recover should
the case arise. The hasty addition of this pilot
program during the RAND study suggests that Congress
may have wanted an easy win by developing something it thought the DoD
could use for risk management immediately instead of waiting to craft a
long-term and deliberate risk management tool for the DoD that is informed by
the RAND study’s results.
By directing the
Secretary of Defense to establish this “loser pays” pilot program risk
management tool first and subsequently
requiring the DoD to produce another report that merely assessed “the
feasibility of making permanent [the “loser pays” provision],”
Congress seemed to be losing sight of its
goal: to determine what was truly the cause of the DoD’s program performance
risk and to help the DoD manage it. Therefore, it seemed that enactment of the
section 827 bid protest pilot program would render the RAND study moot.
However, after taking the time to consider the results of the RAND study—and
likely industry’s objections to the “loser pays” provision—Congress again took drastic action by
repealing the bid protest pilot program.
The RAND study was
likely the impetus behind the repeal of the section 827 “loser pays”
bid protest pilot program and Congress’s
seeming shift in its view of the effect bid
protests have on the DoD’s program performance risk. This is because the
RAND study demonstrated that the DoD’s focus on bid protests at the GAO as a
major cause of its risk may be misplaced, as the data did not support many of
First, RAND found
that bid protests at the GAO are not as ubiquitously detrimental to
the DoD’s capability delivery as the DoD considered because bid protests are rare. Second, RAND found that
the DoD’s low rate of CICA stay overrides
was not consistent with the DoD’s assertion that there is an overabundance of “frivolous” bid protests at the
GAO. Third, though many incumbents do file bid protests at the GAO, the
DoD’s effectiveness rate suggest that those protests are largely filed on
meritorious grounds rather than to secure a
bridge contract or simply frustrate a competitor. Finally, the DoD
did not have the supporting data in four key areas to determine whether bid protests in general—or even just “frivolous”
ones—are needlessly increasing
its program performance risk. Consequently, likely because of the RAND
study, Congress repealed the section 827 “loser pays” bid protest pilot
Insofar as the DoD considers they are
detrimental to overall capability delivery at the macro level, RAND discovered
that bid protests of DoD procurements are
rare. In its study, RAND evaluated bid protest data at the GAO and the COFC from fiscal year 2008 to fiscal
year 2016. During this period, the number of procurements the DoD conducted that were
protested at the GAO or the COFC was
very low. Specifically, in raw numbers covering both pre-award and post-award bid
protests of DoD procurements, 11,459 bid protests were filed at the GAO and
475 were filed at the COFC.
While these bid protest numbers seem significant, they amounted to less
than 0.3% of all DoD procurements,
leading RAND to conclude that bid protests at both the GAO and the COFC
are “exceedingly uncommon for DoD
procurements.” This finding suggested that insofar as
the DoD considers bid protests at the GAO as inhibiting
its capability delivery—and therefore are needlessly increasing its program performance risk—it is not done systematically, as some officials suggest. Therefore, the DoD’s assertion that bid protests in general are
increasing its program performance
risk at the macro level is likely misplaced.
Next, insofar as the DoD considers
frivolous individual bid protests as needlessly
inhibiting capability delivery and increasing actual and transactional costs, its uses of CICA stay
overrides are rare, which does not support its concern. RAND found that the
DoD infrequently issues CICA stay overrides for protests filed at the GAO.
A CICA stay override is a process in which an
agency may decide to continue with the award or performance of a
contract that has been timely protested at the GAO.
To justify an override, an agency must make a determination that “urgent and
compelling circumstances that significantly affect interests of the United
States will not permit waiting for the decision of the [GAO],” or that
“performance of the contract is in the best interests of the United States.”
Here, if individual frivolous bid
protests were needlessly inhibiting the DoD’s
vital capabilities or increasing its program performance risk such that
Congress needed to act, one would presume that the DoD would use this authority more often. However,
RAND found that
the DoD issues a CICA stay override only in 1.5% to 2% of procurements
protested at the GAO.
While the RAND study posited various other questions policymakers within the DoD
should consider as to the reason the CICA
stay override rate was so low, the low rate is still significant in this
Specifically, the rate seems to suggest that it is not apparent on its face
that the DoD is actually experiencing substantial amounts of frivolous bid
protests at the GAO. Therefore, the facts do not support the assertion that
individual frivolous bid protests are needlessly inhibiting capability delivery
and increasing costs.
Further, the bid protest effectiveness
rates suggest that recent increases in bid protest numbers for the DoD—as well
as the higher amount of incumbent
contractor task order protests—are due not to frivolous purposes but rather to protesters’ legitimate business
decisions. As an initial matter, RAND noted
how the GAO tracks protesters’ success through its sustained and effectiveness
The sustained rate “is the number of actions for which GAO sustains the
protester’s claim divided by the number of protest actions that go to
In contrast, “[t]he effectiveness rate is the number
of protest actions that are either sustained or are subject to corrective
action relative to all protest actions.”
An agency’s voluntary action to fix a flaw in the procurement before the GAO
issued a decision is “corrective action.”
In its analysis of the data from fiscal
year 2008 to fiscal year 2016, RAND found
that the sustained rate, or the rate capturing the percentage of cases
where the protester wins, was very low: 2.6% of all cases and 12.2% for cases
that went to a merits decision.
At first blush, these sustained rates would seem to suggest that many bid
protests are frivolous, and there is evidence to support such an assertion
because protesters are losing at such a high rate: 97.4% and 87.8%,
However, when RAND combined the sustained
cases with those that resulted in corrective action, it found
that over that same period, 40% of all
bid protest actions in the DoD consistently
resulted in some change to the “initial procurement decision or
terms.” In other words, RAND
discovered that the effectiveness rate of bid protests of DoD
procurements from fiscal years 2008 to 2016
was stable at about 40%. The stability of the effectiveness rate seems
to refute—insofar as the DoD has
experienced increases in amounts of bid protests at the GAO during this
timeframe—the DoD’s concerns that those increases were a result of
frivolous bid protests. That is
because if those
increases were due to frivolous or
baseless bid protest grounds, the effectiveness rate would have decreased,
which was not the case.
data does not support the DoD’s concern that incumbent contractors—that
are not the anticipated awardees on follow-on task order procurements—file bid protests merely to cause a
CICA stay to trigger a bridge contract or to simply frustrate their
competitors’ business prospects. Though RAND found that one quarter
of task order bid protest actions were associated
with an incumbent and that “incumbents are more likely to protest task
orders when it may be to their economic advantage if they get a bridge contract during the CICA stay,” incumbent contractors
are also more likely to file bid protests for legitimate business
In making this assessment, RAND pointed to the 70% effectiveness rate of incumbent contractors that file bid protests on DoD
task orders at the GAO. This effectiveness rate was “much higher
than average and statistically significant,” as it demonstrated that
“while incumbents may protest task orders
more frequently, [they] are also much more likely to be successful.” As a result, RAND
found that the data did not support the DoD’s concern that incumbent
contractors’ protests are disproportionately frivolous.
Finally, the DoD could not actually
determine whether frivolous bid protests or
bid protests generally at the GAO were needlessly increasing its program performance risk because of the lack of
data in four areas that the DoD
generally considers to affect its procurements. When Congress selected
RAND to conduct the study in the NDAA for fiscal year 2017, it set out
fourteen elements to evaluate. These elements were
generally considered to encompass “aspects of how the bid protest system
affects or is perceived to affect DoD procurements, trends in bid protests, and
differences in procurement characteristics.” In other words, those
fourteen elements constituted what
Congress believed the DoD considered the underlying reasons that all, or just frivolous, bid protests at the GAO
were needlessly increasing its program performance risk.
After completing its
study, though, RAND found that there was
insufficient data on four of the DoD’s concerns to even address them.
These four elements were the effects of
protests on procurements, the time and cost to the Government to handle
protests, the frequency with which a protester is awarded the disputed
contract, and agency-level bid protest trends.
Without fully analyzing these four key elements, the DoD could not actually determine whether its concerns regarding the
effect bid protests at the GAO have on its program performance risk are
Congress repealed the section 827 bid protest pilot program in section
886 of the fiscal year 2021 NDAA.
While Congress pointed to the small pool
size of “bid protests captured by the pilot criteria and lack of cost
data” as the reason for the repeal, it is likely that Congress’s decision was
based on post hoc consideration of the results of the available data the
RAND study discusses, as well as the lack of meaningful data in the four key
Nonetheless, while likely lauded by industry, the RAND study and the repeal of
the section 827 “loser pays” bid protest pilot
program did leave the DoD still in need of a way to manage or assess what
is actually causing its program performance
risk. However, Congress may have tipped
its hand in section 886 as to what it thinks the DoD can use to make the
assessment and how it can manage any risk it finds: the agency-level bid
In section 886 of the fiscal year 2021
NDAA, Congress likely signaled that it
thinks a type of agency-level bid protest program is the solution to the
DoD’s program performance risk management problem. First, potentially inspired by the work of Mr. Dan Gordon, Congress
seems to be leading the DoD to the reason it should consider using a bid
protest program as a risk management tool
and not as a cause of risk in the inquiries it required AIRC to examine. Second, through its direction to the
DoD that it should consider the ACUS’s recommendations on agency-level bid
protest reform, Congress seems to suggest that the DoD can manage its program performance risk with a modified
agency-level bid protest program.
In any event, the “congressional perspective” pendulum seems to be
swinging back towards viewing bid protests as a solution to, instead of a cause
As a threshold matter, Congress repealed
the section 827 “loser pays” bid protest pilot program in section 886 of the
fiscal year 2021 NDAA.
In its place, Congress only posited more questions, which, on its face, has
left a risk management tool vacuum for the DoD where the “loser pays” provision
once stood. However, through those questions, Congress may be signaling
what it thinks would be a pathway to
filling that vacuum. Specifically, in
the conference report to section 886 of the fiscal year 2021 NDAA,
Congress directed the Secretary of Defense
“to undertake a study through the [AIRC], to examine elements of Section
885 of the National Defense Authorization Act
for Fiscal Year 2018 . . . for which [RAND] was unable to obtain full
and complete data during its analysis.”
This new study, the
purpose of which is styled as filling the information gaps in the
earlier RAND study, is interesting not
for what it specifically directs AIRC to investigate, but for the implicit
recommendation and explicit direction it provides to the DoD. For example,
Congress also directed AIRC to examine the “potential benefits of a robust
agency-level bid protest process.”
This is interesting for two reasons. First, most of the questions Congress
posited in furtherance of this direction seem to be inspired by the work of Mr.
Daniel I. Gordon, a prominent Government procurement scholar and practitioner
who, in a rather famous article, explained the key decisions all governments
must make if they want an effective bid protest system.
If Congress was indeed inspired by Mr. Gordon’s
work in its construction of the AIRC inquiries in section 886, this
suggests Congress is changing its perspective on bid protests as they relate to the DoD’s program performance risk. In other
words, Congress seems to now want the
DoD to consider viewing bid protests as a means to manage—not as a cause
of—risk. Second, because Congress is also explicitly directing the DoD
to consider reforming its agency-level bid protest programs in section
886, it seems to further signal the DoD to
consider the use of agency-level bid
protest programs as the risk management tool that will fill the gap left by the repeal of the section 821 “loser
pays” bid protest pilot program.
A. Congress’s Leading Questions to the
Acquisition Innovation and Research Center: “Why” the Department of Defense Should Consider Using Bid Protests as a Risk Management Tool
by an earlier work by Mr. Daniel Gordon, Congress appears to be signaling why it
thinks the DoD should consider the use of bid protests as a program performance risk management tool instead of
viewing them as a cause of risk. Among other things, in the conference
report on section 886 in the fiscal year 2021 NDAA, Congress directed AIRC to
examine the “prevalence, timeliness, outcomes, availability, and reliability of
data on protest activities; consistency of protest processes among the military
Services; and any other challenges that affect the expediency of such
[agency-level bid] protest processes.” However poignant these AIRC
inquires may be, Congress failed to define what it meant by those terms,
thus seemingly leaving up to AIRC the scope
of these inquires. Interestingly, however,
most of these AIRC inquires seem to be remarkably similar to the common
bid protest forum considerations across government procurement systems that Mr.
Gordon, former Administrator for Federal Procurement Policy,
examined in a well-known paper.
In his paper, Mr. Gordon outlines various
key decisions governments must make regarding bid protest fora.
While not the primary purpose of the paper,
he ostensibly details “why” these fora can be used to manage procurement
system risk and by extension program performance risk.
As an initial matter, Mr. Gordon posits
that overarching all of the key decisions he analyzes are various
competing goals of every bid protest system.
On one side of these
competing goals, Mr. Gordon suggests, are the enhancement of the accountability
of procurement officials and government agencies, as well as the
protection of the integrity of the procurement system.
On the other side of this equation is the need for the procurement system to
run efficiently so that it can timely procure the goods or services that a
With this balancing test, Mr. Gordon essentially describes not only a
government’s need to keep these goals in balance, but the spectrum of how a bid
protest system manages its varying types of risk. To accomplish this balance,
and therefore effectively manage this risk, Mr. Gordon lays out the various key
decisions any government must make regarding
its bid protest fora. These key decisions appear to directly
inspire the section 886 AIRC
inquires. Therefore, Congress is apparently signaling not only to AIRC
to use Mr. Gordon’s analysis to inform or scope its approach to the inquires,
but also to the DoD regarding its approach to bid protests and risk management.
First, the key decision on a “bid protest
forum’s jurisdiction,” or the AIRC inquiry
on bid protest “prevalence.” In his paper, Mr. Gordon asserts, among
other things, that a bid protest forum that has jurisdiction over the
challenges to all procurements by an agency it covers “may facilitate
uniformity in the system’s procurement[s],” which will therefore ensure
transparency over all of an agency’s procurements.
Mr. Gordon does not suggest that the benefit of this transparency is limited to
the public but also includes agency
decision-makers. As such, he seems to suggest that an expansive view of a bid protest forum’s jurisdiction, which
includes all of an agency’s
procurements, provides oversight and accountability over an agency’s procurements. In other words, from a risk
management perspective, he suggests
that agency management could potentially use this transparency brought
on by an expansive view on bid protests with data to identify issues and trends to better manage an agency’s procurement
system and its program performance risk.
Second, the key decision on a “bid
protest forum’s time limits,” or the AIRC inquiry on bid protest “timeliness.”
Here, Mr. Gordon suggests that affixing a time limit for bid
protests—especially in cases where a stay of award/performance is
available—helps agency leadership manage risk because it informs the agency
players in a procurement system that there is a limit to “how long the forum
will take to decide the [protest].”
The agency can program this time limit into an acquisition planning timeline to
account for the potential of a bid protest without causing an unplanned delay. In other
words, Mr. Gordon
suggests that this could help to manage program performance risk by providing a means for an agency to backwards
plan and to prepare for a bid protest that reduces or eliminates “surprise” delay lengths brought on by flexible bid protest
fora timelines to decision.
Third, the key decision on a “bid protest
forum’s outcomes,” or the AIRC inquiry as to a bid protest forum’s “ability to
provide meaningful relief.” While this section of Mr. Gordon’s paper primarily
explains the benefit a protester could receive insofar as it is successful at a
bid protest, what is important from a risk management perspective is how an
agency determines success.
Specifically, as Mr. Gordon notes, is that meaningful relief must at a minimum
be an opportunity for a contractor (protester) to compete for a contract in a
situation where the Government has made some error in the procurement process.
In other words, this minimal meaningful
relief serves to facilitate the management
of an agency’s program performance risk because the grant of relief itself to a protester signals to agency
personnel that the integrity of the procurement
process has been violated and changes is required to ensure the agency
gets its supply/service at the best value to the agency.
Therefore, such a grant of relief upfront
during the competition phase of a procurement arguably helps to manage risk by saving an agency time and additional
costs in the long term by
correcting certain situations such as the use ambiguous terms in a solicitation
that could prevent the Government from ultimately getting what it wants, or
making an award to a contractor that will deliver sub-optimal supplies or
This “meaningful relief”—or corrective action—provides an agency the mechanism
to identify and correct errors at a lower actual and transactional cost than
would be incurred if a flawed procurement were allowed to continue.
Fourth, the key
decision of “standing to protest,” or the AIRC inquiry as to a bid protests
forum’s “availability.” In this part of his paper, Mr. Gordon explains that if
a bid protest helps to protect the integrity of the procurement
process—and, by extension, helps to manage an agency’s program performance risk—standing to protest should be
expansive. However, he also implies that such an
expansive view may be too disruptive to the procurement process; thus,
by providing standing to an aggrieved vendor as it is generally now throughout
the U.S. bid protest system—also known as
the “interested party” standard—“has logic to it” and provides balance. A bid protest forum
that establishes a minimum level
of standing at an actual aggrieved vendor that is flexible and could change as
the procurement system changes and evolves serves to also facilitate the
management of program performance risk for an agency. This is because as an agency
develops new and inventive ways to procure supplies and services, the
interested parties will likely also change; therefore, ensuring a continual
balance of external “private attorneys general” are reviewing procurements for
Finally, the key decision on “publishing
of decisions,” or the AIRC inquiry as to the “reliability of data on protests.”
Without great detail, Mr. Gordon addresses the effects of publishing bid
protest decisions on the procurement system in his analysis. In particular, he provides
that, “[a]s a general matter, publishing [bid protest] decisions increases
transparency and extends the benefits of the protest system to a wider public.”
In other words, what Mr. Gordon is likely alluding to are two benefits to the
publishing of decisions.
First, as he has
separately indicated, these bid protest decisions provide guidance to
both agency and vendor legal counsel—and
their clients—on the application of the procurement laws and rules to the
specific facts surrounding a procurement.
This legal guidance facilitates the accurate development of requirements, the
responsive preparation of solicitations and offers, the correct understanding
of the process in which procurements are
conducted, and the reduction of error and litigation instances. Second, the data
those decisions contain help to inform the public, industry, and even other
agencies of both the effectiveness of the bid protests and error trends in both
Government solicitations and vendor offers/bids/quotes.
Both of these benefits serve as a means to facilitate the management of an
agency’s program performance risk through tracking error trends and teaching
individuals how to correct the errors before they happen saving both actual and
transactional cost and time for an agency.
In section 886 of
the fiscal year 2021 NDAA, Congress seems to signal to the DoD that it
should consider the use of bid
protests as a program performance risk
management tool through the leading questions it directed AIRC
to investigate. By drafting the AIRC inquires
similar to the key decisions that
governments must consider when developing their bid protest fora as
discussed by Mr. Gordon, Congress seems to break from the DoD regarding its
view on bid protests and shift toward a view that Congress is part of a risk
management solution. Nevertheless, Congress does not stop there. Through
its endorsement of the ACUS report,
it also seems to tip its hand as to
which bid protest forum it thinks the DoD should use to manage risk:
agency-level bid protests.
In section 886 of the fiscal year 2021
NDAA, Congress also seems to suggest to the
DoD how it can use a reformed agency-level
bid protest program to help manage its risk by endorsing the ACUS report
on agency-level bid protest reform and by directing
the DoD to consider the recommendations contained within it.
At first glance, it may seem that Congress’s endorsement of the ACUS report was
meant merely to suggest to the DoD ways it could improve its agency-level bid
protest programs’ “expediency, timeliness, transparency, and consistency.”
However, the specific statutory construction of section 886 begs the question,
“Why is Congress directing the DoD to examine
its agency-level bid protest programs and
improvements to those programs in the same section in which it is likely
inferring that the DoD should consider bid protests as a risk management tool?”
The likely answer is that Congress believes an agency-level bid protest program
is the forum it wants the DoD to examine to develop
a solution to its risk management problem. This is not surprising, as the
ACUS report incorporates and analyzes the data it collected through the lens of
Mr. Gordon’s key elements of a bid protest system from an agency-level bid
The ACUS report analyzed agency-level bid
protest trends since the program’s
inception in 1995 by drawing on best practices across the Federal Government. The George Washington University Law
School’s Professor Christopher Yukins led the study, which involved
interviewing a multitude of Federal agency and private vendor counsel actively
involved in bid protests and focused on
potential areas of bid protest reform. The gravamen of the study were
eight recommended reforms intended to make agency-level
protests procedures “more simple, transparent, and
predictable” so they can “work better for
both vendors and the agencies they serve.”
reforms were: (1) formalize the role of the “agency protest official”
(APO); (2) clarify jurisdiction of
the agency-level bid protest programs; (3) retain the connection to the GAO’s
“interested party” standard for standing at the agency fora; (4) clarify and
standardize the decision-making process for
agency-level bid protests; (5) clarify the record in which an
agency-level bid protest will be decided; (6) share that record with
protesters; (7) clarify when a regulatory
stay of award/performance is put into place and whether it continues to
any follow-on GAO protest; and (8) publish data on agency-level protest
outcomes, including corrective action. While the ACUS report was
written from a reforming agency-level bid protest program perspective,
the recommended reforms also provide a list of reasons “how” the DoD could
successfully use an agency-level bid protest program as a program performance
risk management tool.
First, the formalization of the role of
an APO. In the ACUS report, Professor Yukins describes the current two-level
decision structure present in most agency-level bid protest programs across the
Federal Government: (1) decision at the contracting officer level or (2)
decision at a higher-level official or APO.
The ACUS report found that some agency legal counsel felt that the ability to
exercise oversight over bid protests—specifically regarding agency-level bid protests—at the APO level led to the
identification of error trends in procurements and gives “managers and
attorneys more information on problems emerging in the procurement system.”
The ACUS report goes on to note that emerging best practice among the
agency-level bid protest programs shows that “by centralizing oversight over
agency-level protests, agencies would be better able to draw on lessons learned
from agency protests, to improve management and training.”
This suggests that the establishment of a
central DoD APO—or at least the consistent establishment of a central APO at
each of the military services and activities under the DoD—would help the DoD
manage its program performance risk. Specifically, the DoD could use an
agency-level bid protest program as a mechanism to identify data on weaknesses
in procurement techniques, management oversight, and training. The DoD could
then use this data to address those
weaknesses on a systematic level as opposed to simply relying
on a “higher-level official” that is only
one level above the procuring contracting officer to identify error
trends and make corrections locally.
Especially since at some contracting activities within the DoD, information is widely disseminated inconsistently, if at
all, after a contracting
officer agency-level bid protest.
Second, the clarification of agency-level
bid protest jurisdiction. In the ACUS report, Professor Yukins describes how
many Federal agencies have “taken divergent and ad hoc approaches to
defining the scope of jurisdiction in their agency-level bid protest
Specifically, he posited that because it is unclear whether new methods of
procurement—such as the DoD’s recently expanded other transaction (OT)
prototype authority (OTA)—will be covered by either GAO or COFC bid protest
jurisdiction, agencies should “take an expansive approach to agency-level bid
protest jurisdiction, to ensure oversight and accountability (and thus contain agencies’ [program performance] risks)
regarding new procurement methods.”
this recommendation would facilitate the management of program performance risk
on those nontraditional procurement
methods that would otherwise not have
bid protest oversight, such as OTs.
In recent years, the DoD’s use of
prototyping OTs under 10 U.S.C. § 2371b has exploded, rising 715% from
2015 to 2019.
Right now, this nontraditional procurement
method lacks consistent oversight, as traditional bid protest
fora have limited or no jurisdiction
to hear bid protests over those actions.
Some practitioners, such as Mr. Rick Dunn, the first General Counsel for the Defense Advanced Research Projects Agency, have
proffered that clarifying that the DoD’s
agency-level bid protest program(s) have jurisdiction over all types of
procurements would provide the DoD some level of bid protest oversight on these
OTs and other non-traditional contracting methods, and would facilitate the
management of its related program performance
risk. In other words, the DoD could use that
oversight to collect data, track trends, and make procurement or programmatic adjustments that could prevent or
reduce incidents that could increase its actual or transactional cost or
delay, and thus help the DoD manage its risk.
Third, protecting the “interested party”
status quo. Here, in the ACUS report
Professor Yukins notes that “[t]he soundest course appears to maintain the status quo: to continue to link
standing for purposes of agency-level
bid protests to general principles of standing at GAO and the Court of
As Mr. Gordon discusses in his paper, the concept of an “interested party,” or
what amounts to standing in bid protests, provides the access for a vendor to
challenge a procurement error at a bid protest forum.
Professor Yukins discovered that Federal agencies, to include the DoD,
generally have linked this concept to GAO or COFC decisions on “interested party” status. In other words, the
concept of standing at the DoD’s
agency-level bid protest programs would adjust in concert with the concept at
the GAO/COFC as those fora would adjust to the U.S. procurement system.
This recommendation would facilitate the
management of the DoD’s program performance risk by continuing to allow the
concept of standing to evolve on par with the
procurement system and future innovative procurement methods—such as OTs
in the DoD or the new Electronic Marketplace that the General Services
This recommendation serves to facilitate risk
management by allowing an agency-level bid protest program to
effectively grow at the speed of innovation without requiring a deliberate
action by the DoD and, therefore, would remain a viable risk management tool.
the agency-level bid protest decision-making timeline and process. Under
this recommendation, Professor Yukins suggests, among other
things, that agencies should establish a
certain and transparent timeline in
which agency-level bid protests are decided. To this end, he posits that agencies should adopt procedural milestones and
processes similar to those established in Part 33 of the Federal
Acquisition Regulation (FAR) for resolving
disputes under the Contracts Disputes Act of 1978 (CDA). This
the DoD to standardize its process and method for deciding bid protests and
would require the APO and contracting officer to adhere to these defined
In support of his recommendation,
Professor Yukins points to the opinions of various agency and vender counsel interviewed
for the ACUS report. The consensus was that in framing the agency-level bid
protest decision-making process as similar to the CDA dispute process, an
agency would “bring certainty and legitimacy
to the agency-level protest process.” This, Professor Yukins suggests, “would
encourage more vendors to use agency-level protests, which should reduce
costs and disruption for agencies overall.”
As Professor Yukins notes, the benefit to clarifying the agency-level bid
protest decision-making process not only affects
protesters, but also agencies. Specifically, clarification would provide
a reliable process and timeline on which the DoD could plan and program
into its acquisition planning to reduce
unplanned delays. Further, because the agency-level
bid protest process should be short—best efforts to achieve decision within
thirty-five days of filing, which is less than half of the time the GAO has to
decide a bid protest—the DoD’s overall transaction cost for the use of this
risk management tool would be lower than what would be “incurred” at the GAO or
While some agency counsel are hesitant to
support this reform because of potential increased transactional costs related
to the establishment and running of such a
process, theoretically, the reform would not be overly onerous if the DoD
properly staffed for it. Additionally, this
recommendation should not increase the agency’s transaction cost, as
“[a]gencies are already required to make best efforts to deliver a [sic]
‘well-reasoned’ opinions on agency-level protests within 35 days.”
Fifth and sixth, the
record on which the decision should be made and its disclosure to protesters.
When considering these recommendations together, Professor Yukins essentially suggests
that agencies formally establish what documents
go into the record that the APO or contracting officer will use to
arrive at the final decision and that agencies should afford protesters access
to that record under what is ostensibly a protective order.
He provides this recommendation because, “[i]n practical terms, the protesting
vendor usually will know only of errors that emerge in the agency’s requests
for bids or proposals, the agency planning and competitive process, or in the
debriefing—the aspects of the procurement process disclosed as a matter of
course to bidders and offerors.”
Professor Yukins posits that by
establishing a consistent definition of what documents are contained in the
record on which the decision will be made, and by providing protesters access
to that record, it would have “the practical
effect of limiting the rounds of protester briefing in an agency-level
Alternatively, to the extent the DoD would be concerned with the increased transactional cost that producing the
complete record would likely create, it could provide a redacted source
selection decision document in post
award bid protests to the protester, which is consistent with DoD policy
for enhanced debriefings.
Essentially, Professor Yukins suggests that
by providing the protesters some record up front, the DoD will see less rounds
in a bid protest that it would otherwise see due to newly discovered protest
grounds. In general, this would save the agency time and reduce overall
transactional cost, therefore, facilitating the management of program
performance risk. Additionally, providing protesters access to a standardized
record up front would shine a light on the shadow of suspicion that a lack of
transparency casts. Frankly, this would
reduce the likelihood of follow-on protests at the GAO or COFC
because the protester felt the agency
was hiding something.
Further, insofar as
the DoD seeks the “best value” in its procurements, effectuating this recommendation would serve to help identify—quickly,
as agency-level bid protests should take around thirty-five days—issues that
DoD officials might have missed. By providing the “private attorneys general” a
standardized record up front, the DoD could uncover issues that were not caught
by either the procuring contracting personnel or, because the value of the
procurement fell under a review threshold, by reviewing contracting personnel
or agency counsel.
This early identification of issues in a
procurement would serve to save the DoD time and reduce transaction cost
up front, as it would allow the DoD to perform corrective action quickly and
minimally disturb the acquisition timeline.
Additionally, while some agency counsel
have voiced concerns that this recommendation would increase transaction costs
too onerously, this recommendation could be structured so it actually would not
serve to incur additional transaction costs
over what the DoD currently incurs. Specifically, the DoD could give protesters
only three days to submit supplemental protests because of errors they
find in the record, which is comparable to the peer and legal review timelines
already planned into the acquisition timeline.
regulatory stay of award/performance. In the ACUS report, Professor
Yukins ostensibly recommends that agencies
clarify how and when they will implement a regulatory stay of
He further suggests that agencies consider
voluntarily extending the regulatory stay
of award/performance for a period—ten days—if the protester subsequently seeks to file a bid protest on the
same procurement at the GAO and promises to support a request for
expedited procedures at the GAO to account for the resulting delay to the procurement.
His reasoning for this recommendation
stems from the fact that many protester
counsel interviewed for the ACUS report felt that it is consistently unclear whether an agency will stay the
procurement during an agency-level bid
protest. Apparently, this lack of clarity pushes
many potential protesters away from
using the agency-level bid protest process and toward the GAO for three
reasons: (1) the fear that the agency will not stay the procurement, (2) the
possibility that the protester would lose the chance at a GAO CICA stay by waiting for the agency to indicate whether it will
stay, and (3) the concern that the
protester would lose the chance for a CICA stay during any follow-on bid protest at the GAO due to confusion as to when
an “adverse agency action”—or a
decision denying an agency-level bid protest in this context—is
“noticed” to the protester.
Because of this lack of clarity on these
points, many potential protesters were deciding to forgo the
agency-level bid protest process entirely.
Adopting this recommendation would serve
to facilitate the DoD’s risk management because it would encourage early use of
the agency-level bid protest process over going directly to the GAO and would
thus serve to “activate” this process as a risk management tool more
If coupled with more transparent record
access discussed above, this increased use of agency-level bid protest
procedures would theoretically also reduce the amount of procurements that
would receive follow-on protests at the GAO
as a matter of course. Further, should a protester decide to file a follow-on bid protest at the GAO, if a protester
promised to support a request for expedited procedures, and the GAO
granted the request, the entire bid protest process would be only around 100
days, which is the traditional GAO bid protest time to decision.
agency counsel interviewed for the ACUS report did raise concerns
about the increased transactional cost
and delay that would likely result because of this extended stay.
Arguably, though, the overall actual and transactional cost risk to the DoD
would likely be lower with an extended stay period for follow-on protests to
the GAO. This is because the contracting personnel would not need to stop the
procurement to stay award/performance because of an agency-level bid protest,
then restart it after the decision is issued, only to stop the procurement
again a couple of days later as the result of a GAO CICA stay. This process
would involve additional transactional costs
to the DoD and potentially actual costs should it be required to
terminate the awarded contract for convenience of the Government because of a
sustained bid protest decision at the GAO.
collection and publication of data on agency-level bid protest outcomes.
Here, Professor Yukins recommends, among other things, publication of an annual agency-level bid protest
report similar to the GAO’s annual report to Congress.
Specifically, he suggests the use of a report similar
to what the U.S. Army requires its heads of the contracting activities
(HCAs) prepare with data that describes the effectiveness of the agency-level
bid protest program.
This data would essentially resemble the type of data that would make up the
GAO’s effectiveness rate.
That is, the combined numbers of sustained decisions and corrective actions
compared to the overall number of bid protests filed.
The effectiveness rate in the
agency-level bid protest context would ostensibly communicate how often,
because of a protest, protesters successfully demonstrate that there is an
error in the procurement, either the contracting officer or the APO agrees, and
corrective action ultimately results.
Further, this data would communicate “an assessment of the causes of the most
frequent recurring issues” that would act as a systematic lynchpin in the
use of the agency-level bid
protest as a risk management tool for the DoD.
makes this recommendation because it “could increase the transparency
of the agency-level protest system and instill more trust in vendors to
use the system.”
Further, this reform would also increase the use
of this bid protest forum, as it would “help agency-level bid protests as
a transparent and reliable channel for review.”
Finally, as stated above, the DoD could use this data to analyze procurement
error trends, predict errors in the procurement process, and proactively address
them with training and other tools, thereby serving as the lynchpin to
systematic use of the program in management of its program performance risk.
Congress is leading the DoD to use
agency-level bid protests to fill the risk management tool void created with
the repeal of the section 827 “loser pays” provision. Through the potential of
modeling the AIRC inquires and after Mr. Dan Gordon’s key decisions that every
government must make regarding a bid protest system, Congress is showing the DoD
the reasons it should use bid protests as a risk management tool. Additionally,
by endorsing the ACUS report and
subsequently directing the DoD to consider its recommended reforms,
Congress is pointing to how it thinks the DoD can
use an agency-level bid protest program to facilitate with its risk
The natural and
probable next question is what agency-level bid protest program the
DoD should use as a model to develop this
replacement to the section 827 bid protest pilot program. The answer? Frankly,
go back to the basics and use the first
agency-level bid protest program that already incorporates many of the ACUS
report reforms as a model: the AMC’s agency-level bid protest program.
The DoD should use
AMC’s agency-level bid protest program as a
model to fill the risk management void that the repeal of the section 827 “loser pays” bid protest pilot program created.
First, AMC’s program was originally used as the model to develop the program
for the entire Federal Government
and was originally designed to manage risk. Second, AMC’s agency-level bid
protest program is a readymade
model for the DoD to emulate that already incorporates many of the ACUS
As a threshold
matter, the Federal procurement system and the rules that govern it
were not created simply as a means to
provide private litigants a right to sue the Federal Government. Instead, the
system was originally designed to regulate itself through its contracting
officials. In the famous decision of Perkins v. Lukens Steel Co., the
U.S. Supreme Court held that the Walsh-Healey Public Contract Act of 1936 did
not provide a means for a private party to challenge an agency’s award decision
in the courts.
Instead, the procurement laws of the time encouraged the Government itself—not
industry or the “private attorneys general”—to run quality control on its
procurements, thereby managing and
analyzing its own risk. In the opinion, Justice Black
[The Public Contract] Act does not depart from but instead embodies the
traditional principle of leaving
purchases necessary to the operation of our Government to administration by the
executive branch of Government, with adequate range of discretion free from
vexatious and dilatory restraints at the suits of prospective or potential
sellers. It was not intended to be a bestowal of litigable rights upon those
desirous of selling to the Government; it is a self-imposed restraint for
violation of which the Government—but not private litigants—can complain.
While procurement law in this context has
significantly changed since Perkins to allow GAO and judicial challenges
to solicitation and award decisions (i.e., bid protests) with the advent of
procurement statutes like CICA and the Administrative Procedure Act, the need
for the Government to perform its own quality control and manage its own risk
Consistent with Congress’s apparent signaling, instead of moving away from bid
protests as if they are the cause of its program performance risk, the DoD
should consider taking a note from the past and leveraging an efficient
agency-level bid protest process to manage and analyze its risk.
Before discussing why the Army’s agency-level bid protest program is the best
program for the DoD to model, it is important to contextualize the reason
agency-level bid protest programs were initially created: to serve as a risk
Today’s formal agency-level bid protest
programs find their origin in a program designed to manage program performance
risk in the 1990s. For many years, disappointed offerors or bidders have raised
their complaints regarding the procurement
process to a contracting officer for resolution.
However, it was
not until the mid-1990s that the executive branch
created the current construct of agency-level bid protest
procedures. This new formalized
agency-level bid protest concept was the brainchild of AMC and the
result of Al Gore’s “Reinventing Government” initiative.
The impetus behind
former Vice President Gore’s initiative was a shared feeling in the
U.S. public procurement community in
the late 1980s and early 1990s that bid protests were “becoming too
confrontational and expensive.”
Similar to today, contracting officers’ view at the time was that bid protests
were a source of program performance risk as a result of “needless delay”
from protracted bid protest
litigation instead of a means to manage the risk.
The result was contracting officers’ shift from focusing on procuring the
“best products and services and
toward building thoroughly-papered, ‘protest-proof’ award files” to
address this perceived form of program
performance risk. In other words, because the Government
viewed bid protests themselves as a source of program performance risk, it moved away from
communicating with industry, which resulted in “inefficiency, expense,
and a stagnancy in the procurement system.”
In an effort to address the aspects of
bid protests at the GAO and courts that it considered created program
performance risk, such as needlessly delaying capability delivery, AMC created
a formalized agency-level bid protest pilot program in 1991.
By the end of its yearlong pilot, AMC discovered that its program had mitigated
many of the issues it theorized were
inherent to bid protests at the GAO and courts that resulted in increased
program performance risk, such as the length of bid protest litigation and delayed capability delivery. Consequently, AMC made its
agency-level bid protest program permanent and, in 1995, the Office of Federal
Procurement Policy “identified the AMC protest program as one of the ten best
practices in the federal government.”
coincidentally, later that same year, the Clinton Administration issued Executive Order 12979, which directed all
Federal agencies to “prescribe administrative procedures for the resolution of
protests . . . as an alternative to protests in fora outside of the procuring
In many ways, AMC’s agency-level bid protest program was the model for
Executive Order 12979 and therefore
the father of all agency-level bid protest programs.
Two key concepts
the Clinton Administration borrowed from the AMC agency-level bid protest program included providing for an agency
protest decision official (or at least a protest decision authority at some
level above the contracting officer whose
decision was being protested) and the creation of the “regulatory stay,” or the prohibition of the award or performance
of a contract while a timely filed
protest is pending before an agency. The only exceptions to this regulatory stay were when either urgent and
compelling reasons or the best
interests of the Government would require the procurement to move forward. These concepts, which were smelted in the
fires of AMC, are now considered universal concepts in agency-level bid
programs. Frankly, it is unsurprising that AMC
currently has many of the ACUS report reforms fully or partially in
practice and therefore would be a great model for the DoD to follow.
The DoD should model
its agency-level bid protest program after AMC’s existing program. Not only is
AMC’s program award winning but it also already fully incorporates many of the
ACUS report’s recommendations. For those recommendations that AMC has
implemented, its current framework would support any DoD desire for full
implementation. Here, the AMC agency-level bid protest program (1) has an
established agency-level bid protest official; (2) can likely hear bid protests
related to all of its procurements; (3) will continue to mature consistently
with the GAO, to include the legal concept of “standing,” as it is tied to the
GAO’s bid protest decisions; (4) has a formalized process similar to the
process to decide a claim submission
as described in the Contract Disputes Act of 1978; (5) provides for an
administrative report made up of documents
consistent with the GAO’s agency report; (6) allows sharing of the administrative report, in meaningful situations,
with a protester; (7) has a consistent and durable regulatory stay of award/performance; and (8) already compiles the
data it needs to analyze and manage its risk. The AMC agency-level bid
protest program already follows the AIRC
inquiry and ACUS report roadmap for the DoD to leverage in developing the risk management tool Congress seems to
First, the higher-level
program, or the Headquarters (HQ) AMC agency-level bid protest program, has an established APO for all protests
filed above the contracting officer.
The U.S. Army’s acquisition regulation supplement refers to AMC’s internal
agency-level bid protest procedures, which establish the AMC Command Counsel as
the “other official” designated to receive protests besides the contracting
The AMC Command Counsel delegated this higher-level decision authority to the
AMC Deputy Command Counsel in 2013 but has since withheld it.
To utilize the HQ AMC agency-level bid
protest program, a potential protester considering
whether to file an agency-level bid protest above the contracting
officer can either file the protest with the contracting officer and ask for a
review at a higher level or file it directly with HQ AMC.
In an effort to disseminate this information, all AMC contract solicitations
include a provision that informs potential
protesters of this higher-level agency-level bid protest option. This locally tailored provision makes
clear to disappointed offerors that a higher-level agency-level bid
protest program exists and that the program has established an APO consistent
with the recommendation in the ACUS report. Further, not only does the locally
tailored provision provide notice of the higher-level program but also that the
APO’s authority at that level covers all AMC procurements.
Second, the AMC agency-level bid protest program
likely has broad jurisdiction to hear bid
protests related to all AMC procurements. Generally, the AMC
agency-level bid protest program applies
the same rules—procedurally and substantively—that apply to GAO protests. This means that it will hear any
bid protest “concerning alleged violations of procurement statutes or
regulations by [AMC contracting activities and/or the individual contracting
officers] in the award or proposed award of contracts for the procurement of
goods and services, and solicitations leading
to such awards.” In other words, similar to the GAO, the
program has jurisdiction over challenges to the solicitation or award of
procurement contracts governed by the FAR. What is not necessarily clear,
however, is whether the AMC agency-level bid protest program has jurisdiction
to hear non-procurement contract
solicitation and award controversies, such as OT contracts awarded under
an OTA. Nonetheless, guidance from the DoD may provide that jurisdiction.
In its current OT guide, the DoD provides
that its agencies may choose to include
language in an OT solicitation describing its agency-level bid
protest procedure. The guide goes on to
provide that, if an agency includes that language in its solicitation,
the OT solicitation would be subject to its agency-level
bid protest procedure. Here, as discussed above, Army
Federal Acquisition Regulation Supplement (AFARS) 5152.233-4002 is required to
be included in all AMC contract solicitations.
The AMC agency-level bid protest program rules and procedures do not distinguish
between a contract in the general sense (which an OT is considered) and a
“procurement contract,” as contemplated by CICA and which grants the GAO its
bid protest jurisdiction.
Therefore, because AFARS 5152.233-4002 must
be included in all AMC contract solicitations, to include procurement contracts, those for OTs, and other
non-procurement contracts, the AMC agency-level bid protest program’s
jurisdiction likely covers the vast majority (if not all) of its procurements.
Consequently, although the GAO’s bid protest jurisdiction relating to
non-procurement contracts—specifically OTs—is limited to only reviewing whether
an agency is properly using the authority,
AMC’s agency-level bid protest jurisdiction is broader, which is
consistent with the ACUS report’s recommendation on clarifying jurisdiction. While the
agency-level bid protest program differs from the GAO in this context,
it otherwise will remain consistent with the GAO, both procedurally and
agency-level bid protest program, to
definition of “standing,” will mature
consistently with the GAO, as the program is generally tied to the GAO’s
decisions. As mentioned above, the AMC program for the most part uses (or is
tied to) the procedural and substantive decisions of the GAO. This allows legal concepts
at the program, such as interested
party status or “standing,” to mature alongside the same concepts at the
GAO. This provides consistency in application of the “rules” for potential
protesters between the two fora and is consistent with the ACUS report’s
recommendation on protecting the “interested party” status quo.
In continuing with the theme of consistency, the formal, written AMC
agency-level bid protest decision process provides a protester notice of any
adverse agency action.
Fourth, the AMC’s agency-level bid
protest process is formal (similar to the
procedures used for deciding claims under the CDA) and its decisions
provide a clear point in time that triggers the GAO timeliness clock. In
addition, AMC’s agency-level bid protest process and the protest decision
issued under it are similar to the formalized procedure and final decision FAR 32.211 requires in deciding claims. The AMC
agency-level bid protest procedures require issuance of a formal,
written decision at the conclusion of the
bid protest, similar to a contracting officer’s final decision (KOFD) on
As an initial matter, an attorney examines each bid protest decision for advice
and assistance. At the HQ AMC level, the APO, who is an attorney, writes these
If the protest is at the contracting officer level, normally the contracting officer
writes the decision after receiving advice and assistance from local
Next, these written bid protest decisions
resemble KOFDs and have predictable timelines for completion. These decisions
include a facts section that states all of the background facts and the protester’s
bid protest grounds. Further,
decision references the relevant solicitation terms, applicable legal
authority, and the decision authority’s analysis on each bid protest ground.
Additionally, similar to the CDA’s requirement that a contracting officer issue a KOFD within sixty days, the written
protest decision is submitted to the protester generally no later than
forty-five days from the agency-level protest filing.
Also, the decision signals that it is the APO’s decision on the protest, which
is similar to how a KOFD signals it is a final decision on a claim.
Further, similar to a KOFD, if
circumstances surrounding the AMC agency-level bid protest require a longer
period to issue a decision, the protester
will receive written notice concerning any extension. As a result, the
AMC agency-level bid protest program’s established process provides clarity to
protesters as to how its agency-level bid protest is proceeding at AMC and
provides a formal and complete written bid protest decision that clearly
marks the point an adverse agency action is
made. This is consistent with the ACUS
report’s recommendation that the Government clarify
the decision-making process for agency-level protests. Additionally, the AMC
agency-level bid protest
program rules provide clarity as to what consists of the record on which
the bid protest decision official must rely.
Fifth, AMC agency-level bid protest
program rules and, indeed, AMC’s common practice, implicitly outline the record
that its subordinate contracting activities
must compile for the APO or consider at the contracting officer level. The AMC agency-level bid protest process
requires that an “administrative report” be compiled for forwarding to the HQ AMC APO or be considered by the contracting
officer when deciding on an agency-level bid protest.
While the AMC agency-level bid protest program
rules do not define the term “administrative report,” contracting officers and AMC legal counsel understand it to
consist of the same documents as an “agency report” under the GAO’s bid
protest rules. While AMC should clarify this point
in writing, the AMC practitioner commonly
understands what is included in the contents of the AMC agency-level bid
protest record. This provides surety that the decision official will have a complete picture of the procurement before
issuing a decision and is consistent with the ACUS report’s recommendation to
clarify the record.
Additionally, in meaningful situations, this record provides a complete picture
of the protest to a protester.
Sixth, the AMC agency-level bid protest
program rules allow for the protester to receive the administrative report in
some situations. Generally, the protester
does not receive a copy of the administrative report in an AMC agency-level
However, when the APO or the contracting officer
need comments from the protester to make a decision, “it may require
sufficient additional copies or portions of the administrative report [be
distributed to] the parties.”
Ostensibly, comments are the protester’s position
on the administrative report. While these
required and have both significant
procedural and substantive effects on a bid protest at the GAO, they are
discretionary in an AMC agency-level bid protest and a protester may submit them only at the request of the appropriate bid
protest decision official.
Here, in cases where
the AMC APO or the contracting officer
determines that the protester may have useful comments, that person will
provide the administrative report to the protester and request comments.
While not as broad as the GAO, the AMC
agency-level bid protest program rules do allow protesters to access the
administrative report when it would be
useful and would not needlessly delay the procurement. Further,
this practice does not fully incorporate the recommendation to share the record with the protester, the existing framework
may easily be adjusted to incorporate the sharing of the administrative
report with the protesters, if the DoD so desired.
Seventh, a certain
and durable regulatory stay of performance/award is immediately
imposed because of any timely agency-level
bid protests filed at HQ AMC or with a contracting officer. Generally, a
regulatory stay of performance/award is
imposed as soon as HQ AMC or a contracting officer receives an
agency-level bid protest that would be timely under the GAO’s rules.
This requirement is enumerated clearly in the AMC agency-level bid protest
program rules, enforced fiercely by agency counsel, and taken seriously by the
override authority: the HCA.
As an initial point, while the FAR and
AFARS (through the internal AMC agency-level bid protest program rules) provide
for a stay override process, it is rarely used.
Its use is so rare that the internal AMC agency-level bid protest program rules
warn that, “[b]ecause of the rapid decision-making process, award or lifting
of the stop-work order in the face of a HQAMC-Level
protest has rarely been granted.” Further, though the FAR
only requires the stay override official be
“a level above the contracting officer,”
the internal AMC agency-level bid protest program rules withhold that decision to the HCA: the Commanding General of
the U.S. Army Contracting Command, which is a major subordinate command
of AMC responsible for oversight of many of AMC’s contracting activities.
immediate, and difficult-to-override stay of
performance/award process serves to provide certainty at the start of an AMC
agency-level bid protest for both a protester and the agency, in that the
protested procurement will be stayed pending the protest. This practice is consistent with the ACUS report’s
recommendation that the Government clarify
the regulatory stay to protesters. Further,
insofar as the DoD might want to
expand the regulatory stay of award/performance over a procurement in a
follow-on bid protest at the GAO, the mechanisms to manage such expansion are
Finally, the Army
already collects and compiles agency-level bid protest data that it
can analyze and use to manage its risk.
Specifically, the Army collects data on both its AMC and contracting officer
agency-level bid protests, which it compiles in an annual report for the Office
of the Deputy Assistant Secretary of the
Army (Procurement) (ODASA-P). The AFARS requires that this
number of protests received during the reporting period, to include their
assessment of the causes of the most frequently recurring issues . . . ;
distribution of protests by subordinate contracting offices; and
additional information considered necessary to a full understanding of the
efficiency and effectiveness of the activity’s agency protest procedures.
The data in this
report comes from multiple sources. First, at the end of each protest,
the various legal offices supporting
either the HQ AMC APO or the contracting
officer in the context of a contracting officer agency-level protest collect and place the data into a document
entitled the “AMC Protest Information
Sheet.” For contracting officer agency-level bid
protests, this document is
submitted—within five working days of initial protest, and again within five
working days after decision—through legal support technical channels to
AMC for consolidation.
Administrative data about the agency-level bid protest is added to the
document, such as the contract number and award date, estimated personnel costs
for defending against the protest, total
contract award costs, “lessons learned” or important information
revealed as a result of the agency-level bid protest (which routinely would
include recurring issues), and whether corrective
Second, until fiscal year 2019, the
various AMC contracting activities would consolidate the data generated throughout
the year and submit an AFARS 5133.103-90 report at the end of the fiscal year
to AMC, which further consolidated the AFARS 5133.103-90 bid protest data
before submitting it to the
ODASA-P. After fiscal year 2019,
however, the Assistant Secretary of the Army (Acquisition, Logistics,
and Technology) and the Army Vice Chief of
Staff mandated that all contracting activities use the Virtual
Contracting Enterprise module that is included in the Army’s Paperless
Contract File system to report the AFARS
5133.103-90 bid protest data among the data from other fora.
Now, ODASA-P pulls the AFARS 5133.103-90 data directly from Paperless Contract
While the Army does not publish the data or its bid protest decisions, the
framework and substance to implement the ACUS report recommendation on
publishing that data is present for the DoD to implement if it so chooses.
Because AMC’s agency-level bid protest
program already fully or partially
incorporates many of the ACUS report’s recommendations into its practice, the DoD should look to it as a risk
management tool. Insofar as the DoD would want to fully implement the ACUS
report’s recommendations, the framework and
substance already exist in the Army’s program to do so.
Policymakers in the DoD should use AMC’s
agency-level bid protest program as a model if it decides to follow Congress’s
signals and use a bid protest program as a risk management tool instead of
viewing bid protests as a cause of risk. Either way, the reader is best
situated to advise those policymakers as they have been introduced to the DoD’s
concerns with the GAO bid protest system,
and how Congress initially attempted to help the DoD with the section 827 “loser pays” provision, but RAND discovered
that those concerns are not be supported by data, and therefore Congress
is now signaling to the DoD it should consider using agency-level bid protests as
a risk management tool.
Judge Advocate, U.S. Army. The author’s relevant education includes: LL.M., Government Procurement Law,
The George Washington University Law School, Washington, D.C.; LL.M., General Military Law with a
Specialization in Government Contract and Fiscal Law, The Judge Advocate General’s Legal Center and
School, Charlottesville, Virginia. The author’s relevant experience includes: Command Judge Advocate,
409th Contracting Support Brigade, Sembach, Germany; Trial Attorney, Contract and Fiscal Law Division,
U.S. Army Legal Services Agency, Fort Belvoir, Virginia; Branch Chief, Cross-Functional Team Legal
Support Branch, Army Futures Command Task Force, Crystal City, Virginia; Deputy Staff Judge Advocate,
Office of the Staff Judge Advocate, White Sands Missile Range, New Mexico. The views presented are those
of the author and/or the individual contributors and do not necessarily represent the views of the
Department of Defense or its components. This paper was submitted in partial completion of the
Procurement Law LL.M.’s writing requirement at The George Washington University Law School. The author
would like to thank Professor Christopher Yukins for his guidance, his anonymous contributors for their
time and insight, and his wife, Ms. Jessica Mayeaux, for her perspective as an acquisition
 William M.
(Mac) Thornberry National Defense Authorization
Act for Fiscal Year 2021, Pub. L. No. 116-283, sec. 886, § 827, 134 Stat. 3387,
Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115-91, § 827, 131 Stat. 1283, 1467 (2017).
Corp., Assessing Bid Protests of U.S. Department of Defense Procurements:
Identifying Issues, Trends, and Drivers [hereinafter RAND Study].
 See FAR
 See id.
33.103–.105; Major James W. Nelson, GAO-COFC
Concurrent Bid Protest Jurisdiction: Are Two Fora Too Many?, 43 Pub. Cont. L.J. 587, 611 (2014).
 Andrew E. Shipley et al., Bid Protests: A Guide to Challenging Federal Procurements 14 (2021).
Competition in Contracting Act of 1984,
Pub. L. No. 98-369, 98 Stat. 1175; 31 U.S.C. § 3553(c)–(d); FAR 33.104(b)–(c),
 See 31
U.S.C. § 3553(d); FAR 33.104(b)–(c).
 See Marcia G. Madsen
et al., Independent Review of
Procurements Is Worth It: There Is No Support for Hamstringing
the GAO Bid Protest Process, 19 Federalist
Soc’y Rev. 4, 7 (2018); see also Mila Jasper, Microsoft
President Calls for Bid Protest Reforms, Nextgov
(Feb. 23, 2021),
https://www.nextgov.com/cio-briefing/2021/02/microsoft-president-calls-bid-protest-reforms/172248 (statement of Brad
Smith, President of Microsoft) (“We all want to ensure fairness, and
that includes a fair right to be heard. But we could definitely benefit from an
accelerated timeline to do so.”).
 As used in
this article, “program performance risk”
means all risk a program faces during its lifetime in delivering the object of
the program on time, within budget, and which performs as intended. See
generally Off. of the Deputy
Assistant Sec’y of Def. for Sys. Eng’g, Dep’t of Def., Risk, Issue, and
Opportunity Management Guide for Defense Acquisition Programs 3 (2017)
(“Risks are potential future events or conditions that may have a
negative effect on achieving program objectives for cost, schedule, and
performance.”). It also includes risk that is specifically and generally
applicable to the procurement system that effects the risk outlined above.
generally National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 885, 130 Stat.
2000, 2319 (2016); Memorandum from Acting Under Sec’y of Def. for Acquisition,
Tech. & Logistics, to Sec’ys of the Mil. Dep’ts et al. (Aug. 24, 2007)
[hereinafter Young Memo] (“[P]rotests [sic] actions consume vast amounts of the
time of acquisition, legal, and requirements
team members; delay program initiation and the delivery of capability;
strain relations with our industry partners and stakeholders; and create misperceptions among American citizens.”); see
also RAND Study, supra
note 3, at 17
(“[S]ome [Department of Defense (DoD)] contracting officers indicated that they
were concerned that a bid protest would
delay their ability to meet program contracting milestones and risk
program funding reductions if they could not meet obligation and expenditure
 RAND Study,
supra note 3, at iii.
Steven L. Schooner, Bid Protests: The RAND Study of DoD Protests at the GAO
and the COFC, 32 Nash & Cibinic
Rep. 26, 27 (2018).
Madsen et al., supra note 9; William E.
Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes,
9 Admin. L.J. Am. U. 461, 489–91
 Daniel H.
Ramish, Midlife Crisis: An Assessment of
New and Proposed Changes to the Government Accountability Office Bid Protest
Function, 48 Pub. Cont. L.J.
35, 53 (2018) (citing Young Memo, supra note 11); Madsen et al.,
supra note 9, at
 Madsen et
al., supra note 9, at
4, 7, 11.
 E.g., Ramish, supra
note 14; Christian Davenport, Senate Proposes Measure to
over Pentagon Contract Awards, Wash. Post
(Oct. 8, 2017), https://www.washingtonpost.com/business/economy/senate-proposes-measure-to-curb-protests-over-pentagon-contract-awards/2017/10/08/9cf61060-a842-11e7-b3aa-c0e2e1d41e38_story.html (“The big five defense contractors file a
bid protest on autopilot whenever they lose. And this is targeted to help curb
that behavior . . . .”).
Madsen et al., supra note 9, at 11.
 S. Rep. No.
114-255, at 211 (2016).
Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, § 885(a), 130 Stat. 2000, 2319 (2016).
Madsen et al., supra note 9, at 7–8; National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 827, 131
Stat. 1283, 1467 (2017).
Madsen et al., supra note 9, at 5.
 U.S. Gov’t
Accountability Off., B-401197, Report to Congress on Bid Protests Involving
Defense Procurements 2 (2009) (“[M]aking . . . a determination [that a
bid protest is “frivolous”] could add
substantial costs to the protest process and have unintended
consequences . . . .”).
Defense Authorization Act for Fiscal Year
2018 § 827.
Ramish, supra note 14.
Defense Authorization Act for Fiscal Year
2018 § 827(a).
Rep. No. 115-404, at 872 (2017) (Conf. Rep.) (focusing solely on
protests at the GAO).
Ramish, supra note 14.
 See Madsen et al.,
supra note 9, at 4–5 (“At the time Section 827 was proposed and
enacted, there was relatively little data
on bid protests. . . . There was no data supporting the notion that protests of
large acquisitions are hampering procurement efforts . . . .”).
Defense Authorization Act for Fiscal Year
2018 § 827(c).
 E.g., Madsen et al.,
supra note 9; Ramish, supra note 14 (“In short, the loser pays provision will not penalize
frivolous protests, may deter worthwhile protests, and could actually result
in greater cost and delay if it drives large defense contractors to file their
bid protests at the Court of Federal Claims.”).
Study, supra note 3, at xv tbl.S.1.
Young Memo, supra note 11.
supra note 3, at
 31 U.S.C. §
 Id. §
3553(d)(3)(C)(i); see FAR
33.104(a), (c) (2019).
 See RAND Study,
supra note 3, at
 See generally Schooner, supra
note 12, at 29.
supra note 3, at
 Id. at 21, 24.
Corrective action can also occur
because of a sustained GAO decision. See U.S. Gov’t Accountability Off., GAO-18-510SP,
Bid Protests at GAO: A Descriptive
Guide 27 (2018) [hereinafter GAO
 RAND Study, supra
note 3, at 32 tbl.4.3; see generally 4 C.F.R. §
21.5 (2019) (implying a merits decision at the GAO is one where the GAO
reaches a conclusion on the substance of a protester’s bid protest grounds).
 RAND Study, supra note 3, at
 See generally
id. at 66; Richard B. Oliver & David
B. Dixon, Changes for Bid Protests in FY 2018 NDAA, Pillsbury (Nov. 16, 2017),
(noting that the GAO task order bid protest threshold changed—and therefore
limited the amount of bid protests that could be brought and analyzed—during the
timeframe the data for the study was collected from $10 million to $25 million
for the DoD).
 RAND Study,
supra note 3, at 60;
Schooner, supra note 12, at 29.
 RAND Study,
supra note 3, at
Schooner, supra note 12, at 29.
 RAND Study,
supra note 3, at
generally Young Memo, supra note 11 (implying that the
RAND study was unable to assess due to lack of data).
 William M.
(Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, sec. 886, § 827,
134 Stat. 3387, 3791.
 Id.; see Acquisition
Reform Working Grp., 2018 Legislative Packet 24 (2018) (covering a combination of industry’s
recommendations relating to the “loser pays” provision based on the RAND
discussion supra Part III.
Rep. No. 116-617, at 1708 (2020) (Conf. Rep.).
 See generally Daniel I.
Gordon, Constructing a Bid Protest
Process: Choices Every Procurement Challenge System Must Make,
35 Pub. Cont. L.J. 427 (2006).
 See H.R. Rep.
No. 116-617, at 1708; see generally Christopher Yukins, Stepping
Stones to Reform: Making Agency-Level Bid Protests
Effective for Agencies and Bidders by Building on Best Practices from
Across the Federal Government (2020) [hereinafter ACUS Report].
 H.R. Rep. No. 116-617,
 Daniel I.
Gordon, Off. of Mgmt. & Budget,
https://obamawhitehouse.archives.gov/omb/procurement_bio_gordon (last visited
Dec. 20, 2021).
supra note 70.
 See generally
id. (explaining the positive and negative
effects each of the key decisions governments make regarding the bid
protest system have on a procurement system).
supra note 71, at 26
(suggesting expanded agency-level bid protest jurisdiction
ensures oversight and accountability and therefore manages an agency’s program
performance risk when using new procurement methods).
Gordon, supra note 70, at 438. The
term “players” in this context includes contracting
officials, agency legal counsel, and agency program/requiring activity
 Interview with
Jessica Mayeaux, Cont. Specialist, U.S. Dep’t of Def., in Burke, Va. (Mar.
19, 2021) (providing that some period of time can be included in an acquisition
timeline to account for bid protests and, to some extent, some agencies already
supra note 3, at 53
(providing that the Court of Federal Claims bid protest timeline to decision is
flexible and varied greatly, with an average of 133 days and a median of 87
days); see also Interview with Jessica Mayeaux, supra note 85.
Gordon, supra note 70, at 442–43.
 Steven L.
Schooner, Protests Protect Procurement
System (Part 2), FCW (Mar. 7, 1999),
Steven L. Schooner, Fear of Oversight:
The Fundamental Failure of Businesslike Government, 50 Am. U. L. Rev. 627, 694 (2001).
Gordon, supra note 70,
(defining “standing” generally as having the right to call on the bid protest
forum for investigation and relief).
FAR 33.101 (2019) (defining an “interested
party” as an actual or prospective offeror whose
direct economic interest would be affected by the award of a contract or by the
failure to award a contract). See also FAR 33.103(d)(2)(vii); 4
CFR § 21.1(a) (2019) ; 28 U.S.C. § 1491(b)(1) (providing the use of the
interested party standard at all three bid protest fora).
 See ACUS Report,
supra 71, at 28; see also Scanwell Labs., Inc. v.
Shaffer, 424 F.2d 859, 864 (D.C. Cir.
1970) (describing the role of “private attorneys general”—or industry—in
monitoring compliance with Federal procurement law).
Gordon, supra note 70,
Dan Gordon, Bid Protests: The Costs Are
Real, But the Benefits Outweigh Them, 42 Pub.
Cont. L.J. 489, 444–45 (2013).
Ross L. Crown, Legal Insights: What
Bid Protests Can Teach Us About Preparing Better Contract Proposals, PACA Pulse, Winter 2018, at 1.
 ACUS Report,
supra 71, at 51.
 See H.R. Rep.
No. 116-617, at 1708 (2020) (Conf. Rep.). The Administrative Conference
Act established the Administrative Conference of the United States. 5
U.S.C. §§ 591–596. The Administrative Conference of the United States studies
the efficiency, adequacy, and fairness of the
administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements. Id. §
 H.R. Rep. No. 116-617, at
M. Eig, Cong. Rsch. Serv., 97-589, Statutory Interpretation: General Principles
and Recent Trends 2 (2014) (providing that the Supreme Court has
generally expressed that “a statute be read as a harmonious whole whenever
supra note 71, at
at 5; see Christopher Yukins, Agency-Level
Bid Protests, Pub. Procurement Int’l,
(last visited Dec. 21, 2021).
supra note 71, at 5.
Professor Yukins currently serves as Co-Director of the Government Procurement Law Program at the George Washington
University Law School, where he has taught classes on contract formations and
performance issues in public procurement,
bid protests and claims litigation, state and local procurement,
anti-corruption issues, foreign contracting, procurement reform, and
comparative and international law. Christopher
R. Yukins, Geo. Wash. Univ. L. Sch.,
(last visited Dec. 21, 2021). He has testified on issues of procurement reform
and trade before committees of the U.S. Congress and the European Parliament,
and he has spoken as a guest lecturer at institutions around the world. Id.
He is an active member of both the Public Contract Law Section of the American
Bar Association and the Procurement Roundtable, an organization of senior
members of the U.S. procurement community. Id. He has worked on a wide
array of international projects on capacity-building in procurement, and he was
an advisor to the U.S. delegation to the working group on reform of the United
Nations Commission on International Trade Law. Id.
Emily Bremer, ACUS Publishing Six New
Recommendations and One Statement (ACUS
Update), Yale J. on Regul.: Notice & Comment (Jan. 21, 2021),
ACUS Report, supra note 71, at 5.
supra note 71, at
assertion is based on the author’s professional
experiences as Command Judge Advocate,
409th Contract Support Brigade, June 2018 to August 2020; Branch Chief, Cross
Functional Team Legal Support Branch, Army
Futures Command Task Force, January 2018 to June 2018; and Trial
Attorney, Contract and Fiscal Law Division, U.S. Army Legal Services
Agency, June 2016 to January 2018
[hereinafter Professional Experiences] (finding that, in many cases,
contracting officers in the Army would report results of lower-level
agency-level bid protests to their supervisors and senior technical chain by
briefing or using reporting tools, but that
that data was not consistently disseminated within the local contracting
activity, to other sister contracting activities within the Army, or at any
level to sister service contracting
activities as lessons learned). But see Interview with Senior Agency
Legal Couns., U.S. Army (Mar. 17, 2021)
(providing that in some contracting activities within the Army, data in
the form of lessons learned are shared locally after every agency-level bid
protest and that eventually some agency-level bid protest data is shared with
the Army acquisition workforce through what are known as “business intelligence
supra note 71, at
 See id.; 10
U.S.C. § 2371b. This
recommendation presumes that there is a tracking system for agency-level
bid protest data.
Sydney J. Freedberg Jr., OTAs Soar &
Army Leads the Way: CSIS Report, Breaking
Def. (Dec. 9, 2020, 4:12 PM),
America, Inc., B-416061, 2018 CPD ¶ 180 (Comp.
Gen. May 31, 2018); Space Expl. Techs. Corp. v. United States, 144 Fed. Cl. 433
(2019); MD Helicopters Inc. v. United States, 435 F. Supp. 3d 1003 (D. Ariz.
 GW Law Government
Procurement Law Program, An “Ideas Forum” on Other
Transactions (OTs), YouTube (Mar.
20, 2021), https://youtu.be/BCoRnvMqxrY?t=3170.
supra note 71, at 26.
supra note 71, at 28.
at 28; see Christopher R. Yukins, U.S.
Government to Award Billions of Dollars in Contracts to Open Electronic
Marketplaces to Government Customers—Though Serious Questions Remain, Gov’t Contractor, Oct. 16, 2019, at 1.
 ACUS Report,
supra note 71, at
Interview with Jessica Mayeaux, supra
note 85 (providing that
some agencies in the DoD already account for bid protest delay in acquisition
FAR 33.103(g)–(h) (2019); 4 C.F.R. §
21.9(a) (2019) (requiring the GAO to issue a decision
on a protest within 100 days after it is filed); Anatomy of a Protest at the
U.S. Court of Federal Claims, Morrison
& Foster (Apr. 10, 2017), https://govcon.mofo.com/protests-litigation/anatomy-of-a-protest-at-the-u-s-court-of-federal-claims
(providing that timelines to decisions at the Court of Federal Claims
can exceed 100 days).
Interview with Deputy Chief Couns., 409th
Contracting Support Brigade (Mar. 21, 2021) (discussing that lack of personnel
available to manage this process could prove too onerous and therefore the DoD
would need to staff up to support this recommendation).
 ACUS Report,
supra note 71, at
 Id. at 40. The GAO
and other fora use protective
orders to control access to proprietary or confidential material that is
disclosed during a protest that cannot be released publicly. See 4
C.F.R. § 21.3(c) (2019); U.S. Gov’t
Accountability Office, GAO-19-613SP, Guide to GAO Protective Orders 2
(10th ed. 2019).
supra note 71, at 39.
generally id. at 38; see
Interview with Deputy Chief Couns., supra note 127.
supra note 71, at 41
(discussing lack of transparency as the result of poor debriefings, of which
agency-level protests are the “logical extension”).
Memorandum from Commander, 409th Contracting Support Brigade to 409th Contracting Support Brigade, subject: Legal
Services Standard Operating Procedure 6 (May 10, 2017) [hereinafter 409th Legal Policy Document] (providing as an
example that legal reviews are conducted on all contracting actions valued at
greater than a certain dollar threshold
as a matter of course); see Interview with Senior Agency Legal Couns.,
U.S. Army, supra note 109 (providing
that bid protests can be a tool to uncover issues not caught in the acquisition
process for various reasons).
 See Interview with
Jessica Mayeaux, supra note
85 (providing that some DoD agency peer and policy office
reviews of procurements take between seven and thirty days). Additionally,
many legal reviews can take from five to ten days to complete. See, e.g.,
409th Legal Policy Document, supra note 134, at 4;
Professional Experiences, supra note 109.
supra note 71, at
generally id. at 47–48.
Id. at 48 (providing that the
agency-level bid protest would take around thirty-five days, with the express
option at the GAO taking an additional sixty-five days).
id. at 51; Interview with Deputy
Chief Couns., supra note 127 (discussing
how one will likely never see a sustained
contracting officer agency-level bid protest because of corrective action and
that even an APO sustained protest would likely result in corrective
supra note 71, at 51;
from Major General Paul H. Pardew, Head, Contracting Activity, U.S. Army, to Army
Contracting Command Workforce (Apr. 22, 2020, 1:47 PM) (on file with
author) (“The purpose of the ACC protest data reporting effort is to establish
a Command-wide tool for tracking protests/corrective actions and to identify
lessons learned, trends, and systemic issues. Our goal is twofold: to provide
AMC and ACC leadership visibility on protest activity and to provide Senior
Contracting Officials (SCOs) with information that can help them develop
 ACUS Report,
supra note 71, at
 See Letter from Aaron
Silberman, Chair, Section of
Pub. Cont. L., Am. Bar Ass’n, Section
of Public Contract Law, to David Drabkin (May 11, 2018), https://www.americanbar.org/content/dam/aba/administrative/public_contract_law/comments/comments-section-809-bid-protest-overall.pdf.
Gordon, supra note 95,
 Perkins v.
Lukens Steel Co., 310 U.S. 113, 127 (1940)
 See H.R. Rep.
No. 98-861, at 1435 (1984) (Conf. Rep.) (providing that, although
Congress did not legislate the
purpose of bid protests, “[t]he conferees believe that a strong enforcement
mechanism is necessary to insure that the mandate for competition is enforced
and that vendors wrongly excluded from competing for government contracts
receive equitable relief.”); see also
3 Advisory Panel on Streamlining &
Reguls., Report of the Advisory Panel on
Streamlining and Codifying Acquisition Regulations 344 (2019)
(“What Congress, the Executive Branch, UNCITRAL, and ABA have said regarding
the purpose of protests indicates that the purpose for granting aggrieved
persons the ability to protest is to ensure the procurement process remains
effective and efficient while maintaining the confidence of participants in the
 ACUS Report, supra
note 71, at 49 (“One government counsel said agency-level
almost never sustained at his agency, but he hastened to explain that, because
an agency-level protest is a management tool—an opportunity
for the agency to identify and correct its own error—a meritorious agency
protest is typically resolved through corrective action, rather than a formal
decision.” (emphasis added)).
Cibinic, Jr. et al., Formation of Government Contracts 1681 (4th
Exec. Order No. 12979, 60 Fed. Reg. 55171
(Oct. 25, 1995).
 See Major Erik
A. Troff, Agency-Level Bid Protest Reform: Time for a Little Less
Efficiency? 4 (Apr. 26, 2005),
 See Headquarters,
U.S. Army Material Command, Fact Sheet (2020), https://www.amc.army.mil/Portals/9/Documents/Fact%20Sheets/2020%20Fact%20Sheets/HQAMC-FactSheet-25SEP2020.pdf
(describing the Army Materiel Command (AMC) as “the Army’s primary logistics
and sustainment command” and lead materiel integrator responsible for
“providing materiel and sustainable readiness” to the entire Army). As the lead
materiel integrator, AMC is—and was then—functionally responsible for the
Army’s procurement efforts and was in the unique position to develop a global
view of the effect bid protests had on program performance risk. Id.
Troff, supra note 159
AMC personnel “had resolved bid protests in an average of 16 working days
(compared to the GAO’s 76 day average)”).
 Exec. Order
No. 12979, 60 Fed. Reg. 55171 (Oct. 25,
 See Troff, supra
note 159, at 5 (discussing the key themes of Executive
Order 12979 that originated with AMC’s
agency-level bid protest program).
Exec. Order No. 12979, 60 Fed. Reg. 55171.
generally FAR 33.103(d)(4), (f) (2019).
 This section uses
the phrase “AMC agency-level bid protest program” throughout. Unless
indicated otherwise, that phrase consists of both the upper-level Headquarters
(HQ) AMC agency-level bid protest program and the lower-level contracting
officer agency-level bid protest program.
 The AMC agency-level
bid protest program is one of two upper-level agency-level bid protest programs
in the U.S. Army. See AFARS 5133.103(4)(i)–(ii) (2019). The AMC
agency-level bid protest program has jurisdiction over procurements handled
under AMC’s contracting authority that has been delegated to the Army
Contracting Command. Id. The U.S. Army Corps of Engineers manages
the other upper-level agency-level bid protest program. Id. This
analysis follows only AMC’s agency-level bid protest program.
AFARS 5133.103(d)(4); see also Memorandum
from Command Couns. for Record, U.S. Army Materiel Command, subject: Delegation
of Authority No. 2013-11 Delegation of Protest Decision Authority (June 20,
2013) [hereinafter AMC Delegation Memo].
FAR 33.103(d)(3); AFARS 5133.103(d)(4)(i); see
generally U.S. Army Materiel Command (AMC), AMC Bid Protest Handbook: Operations
and Procedures Applicable to GAO and AMC Protests 96 (2013) [hereinafter AMC Bid Protest
Handbook]; AMC Delegation Memo, supra note 174.
AMC Delegation Memo, supra note 174; Professional
Experiences, supra note 109; HQ
AMC-Level Protest Procedures Program, supra note 185.
 AMC Bid Protest
Handbook, supra note 175.
 See AMC Bid
Protest Handbook, supra note 175 (referring potential protesters to AMC’s online
agency-level bid protest rules); 409th
Contracting Support Brigade, U.S. Dep’t of Army, Supplement to the Army
contracting Command Acquisition Instruction
15–16 (2018) (flowing down the AFARS bid protest provision); see also
AFARS 5152.233-4002 (providing a locally tailored AFARS provision that is
inserted into AMC solicitations). Subpart 5152.233-4002 of the AFARS provides:
[I]nsert the following
PROGRAM (June 2016)
If you have complaints
about this procurement, it is
preferable that you first attempt to resolve those concerns with the
responsible contracting officer. However, you can also protest to Headquarters,
AMC. The HQ, AMC-Level Protest Program is
intended to encourage interested parties to seek resolution of their concerns within AMC as an Alternative
Dispute Resolution forum, rather than filing a protest with
the Government Accountability Office or other external forum. Contract award or
performance is suspended during the protest to the same extent, and
within the same time periods, as if filed at the GAO. The AMC protest decision
goal is to resolve protests within 20 working days from filing. To be timely,
protests must be filed within the periods specified in FAR 33.103. Send
protests (other than protests to the contracting officer) to:
Headquarters U.S. Army
Materiel Command Office of
4400 Martin Road, Rm:
A6SE040.001 Redstone Arsenal, AL
35898-5000 Fax: (256) 450-8840
The AMC-level protest procedures
are found at: http://www.amc.army.mil/Connect/Legal-Resources
If Internet access is
not available, contact the
contracting officer or HQ, AMC to obtain the AMC-Level Protest Procedures.
generally AMC Bid Protest Handbook, supra note 175; see also
HQ AMC-Level Protest Program, U.S. Army
Off. of Gen. Couns.,
(last visited Dec. 21, 2021) (clarifying that AMC has adopted the same rules
that apply in GAO protests to include jurisdictional limits).
 31 U.S.C. §§
3551(a), 3552; 4 C.F.R. § 21.1(a) (2019).
of Def., Other Transactions Guide, Office of the Under Secretary of Defense for
Acquisition and Sustainment 27 (2018) [hereinafter DoD
 See AMC Bid
Protest Handbook, supra note 175 (referencing AFARS 5152.233-4002).
 See generally
id.; see Oracle America,
Inc., B-416061, 2018 CPD ¶ 180 (Comp. Gen. May 31, 2018) (discussing the limits of the GAO’s bid protest
jurisdiction to include review of the award or solicitation of
procurement contracts under CICA); DoD
OT Guide, supra note 181, at 38
(providing that an OT is a contract).
Oracle America, Inc., B-416061, 2018 CPD ¶
180 (Comp. Gen. May 31, 2018). The only exception to the AMC agency-level bid
protest program’s broad jurisdiction is the GAO’s $25 million task and delivery
order threshold, which AMC specifically adopts as its own. See HQ AMC-Level
Protest Procedures Program, Army
Material Command, https://www.amc.army.mil/Connect/Legal-Resources (last
visited Dec. 21, 2021); see also ACUS Report,
supra note 71, at
AMC-Level Protest Program, supra note
also ACUS Report,
supra note 71, at
 AMC Bid Protest Handbook,
175; HQ AMC-Level Protest Procedures
note 185; see FAR
generally FAR 33.211(a)(2) (requiring a
contracting officer to obtain legal advice before issuing a final decision).
 409th Legal Policy
Document, supra note 134, at 5 (discussing how local policy of AMC’s
various subordinate contracting activities govern
contracting officer-level bid protest legal assistance); see generally
FAR 33.211(a)(4); AMC Bid Protest Handbook, supra
at 95 (“The contracting officer’s written decision should reflect well
researched and reasoned legal advice. Letters should not summarily deny or
dismiss protests without providing sufficient factual discussion and legal
citation, as applicable. The decision’s rationale should contain the same
degree of detail as though the contracting officer were attempting to persuade
an independent forum such as GAO as to the correctness of the decision.”).
 AMC Bid Protest
Handbook, supra note 175, at 95.
HQ AMC-Level Protest Procedures Program,
supra note 185; AMC
Bid Protest Handbook, supra
note 175; FAR 33.211(c)(1)–(2). The timeline is applied to
the contracting officer agency-level bid
protests as well.
See AMC Bid Protest
Handbook, supra note
generally 4 C.F.R. § 21.2(a)(3) (2019); GAO Descriptive
note 49, at 10.
supra note 71 at
HQ AMC-Level Protest Procedures Program,
supra note 185; AMC
Bid Protest Handbook, supra note
 See HQ AMC-Level
Protest Program, supra
note 179 (“AMC applies the same
rules that apply in GAO
protests,” both substantive and
procedural); see also 4 C.F.R. § 21.3(d) (discussing the contents of the GAO agency report). Further, the AMC
community shares this intent in practice. Professional Experiences, supra
supra note 71, at
 AMC Bid Protest
Handbook, supra note 175.
 See 4
C.F.R. § 21.3(i); GAO Descriptive Guide, supra note 49, at 22; see
also James F. Nagle & Adam K. Lasky, A Practitioner’s Road Map to
GAO Bid Protests, 30 Constr. Law.
1, 5 (2010).
 Nagle &
Lasky, supra note 203;
AMC Bid Protest Handbook, supra note
 AMC Bid Protest
Handbook, supra note 175.
 ACUS Report,
supra note 71, at 39
(discussing the position of agency attorneys on providing access to the
administrative report to protesters).
 See 4 C.F.R. §
21.2(a)(1)–(3); AMC Bid Protest Handbook, supra
175, at 94, 96; see
also Kate Manuel & Moshe
Schwartz, Cong. Rsch. Serv.,
R40228, GAO Bid Protests: An Overview of
Time Frames and Procedures 8 (2016).
Protest Handbook, supra note 175; see also
FAR 2.101 (“Head of the contracting activity means the official who has overall
responsibility for managing the contracting
activity.”). In practice, significant reminders are sent to, and training is
conducted with, the acquisition
workforce by agency counsel concerning the stay of performance for timely filed
AMC agency-level bid protests. Professional Experiences, supra note 109.
 See HQ AMC-Level
Protest Procedures Program, supra
note 185 (providing the head of the contracting activity
a stay “upon a written finding that contract performance will be in the best interests of the United
States; or urgent and compelling circumstances that significantly affect
the interests of the United States will not permit waiting for a decision from
the HQAMC protest decision authority.”).
FAR 33.103(f)(1), (3); AFARS
5133.103(d)(4)(i); AMC Bid Protest
Handbook, supra note 175.
FAR 33.103(f)(1), (3); AFARS
5133.103(d)(4)(i); AMC Bid Protest
Handbook, supra note 175.
supra note 71, at
 See AFARS
5101.290(b)(1), 5133.103-90; see also
Bid Protests—Agency Level Protests, Ward & Berry (Aug. 26, 2020), https://www.wardberry.com/gov-con/bid-protests-agency-level-protests.
Army Materiel Command, AMC Protest
Information Sheet (on file with author) [hereinafter AMC Protest Information
Sheet]. A nearly identical version of this information sheet is also used to
submit data on GAO bid protests to AMC.
at 1–3; Professional Experiences, supra
 See E-mail from
Deputy Chief Couns., 409th
Contracting Support Brigade, to author (Feb. 26, 2021, 9:57 AM) (on file
with author). This report included both AMC and contracting officer
agency-level bid protest data.
E-mail from Major Gen. Paul H. Pardew, supra
note 149 (requiring
compilation of data from agency-level bid protests, GAO and Court of Federal
Claims bid protests, and claims).
 This system is
different from the Department of Defense’s section 827 bid protest tracker, which
contains data from all three fora but is geared towards the repealed section
827 bid protest elements. See Protest
Tracker, U.S. Dep’t of Def.,
visited at Dec. 21, 2021).
supra note 71, at