CONFLICTING BID PROTEST DECISIONS: THE SPLIT BETWEEN THE COURT OF FEDERAL CLAIMS AND THE GOVERNMENT ACCOUNTABILITY OFFICE ON LATE EMAILED PROPOSALS

[...]Part V explores some potential solutions. Because the conflict between the GAO and the COFC regarding late emailed proposals impairs the government's ability to act consistently and efficiently and creates an incentive for forum-shopping, this split between the two bid protest fora must be...

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Veröffentlicht in:Public contract law journal 2019-04, Vol.48 (3), p.449-484
1. Verfasser: Carroll, Sarah
Format: Artikel
Sprache:eng
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Zusammenfassung:[...]Part V explores some potential solutions. Because the conflict between the GAO and the COFC regarding late emailed proposals impairs the government's ability to act consistently and efficiently and creates an incentive for forum-shopping, this split between the two bid protest fora must be resolved. JURISDICTION OF THE COFC AND THE GAO AND HOW THE TRIBUNALS DIFFER In 1855, Congress created the predecessor of today's COFC-the U.S. Court of Claims-and the statutes establishing the jurisdiction of this court represented "the first significant waiver of federal sovereign immunity" of the United States.5 The jurisdiction of the Court of Claims included monetary claims against the United States based on any act of Congress, regulation of an executive department, or "any contract, express or implied, with the government of the United States. The Budget and Accounting Act of 1921 created the GAO as an independent agency under the legislative branch headed by the Comptroller General.8 The GAO initially had no express statutory authority to hear bid protests, but it began to issue bid protests decisions in 1926, claiming authority under various statutes granting it settlement powers to ensure funds appropriated by Congress were lawfully spent.9 In that first bid protest decision, the GAO determined the terms of a solicitation were unlawful because the specifications were written for a specific brand of truck, thereby unfairly excluding the competition.10 Subsequently, the GAO began to hear both pre-award protests, such as those challenging the solicitation terms, and post-award protests filed by unsuccessful offerors challenging the decision to award a contract to a competitor.11 In 1984, the Competition in Contracting Act (CICA) significantly reformed the federal procurement system to promote competition and granted the GAO statutory authority to decide "protest[s] concerning an alleged violation of a procurement statute or regulation. The Supreme Court created a roadblock for challenging such actions in federal court with its 1940 decision in Perkins v. Lukens Steel.13 The Supreme Court concluded that the executive branch must enjoy "unrestricted power . . . to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases," in order to prevent "confusion and disorder" created by "judicial supervision" of federal procurement decisions.14 Thus, the plaintiffs had no standing to challenge the wage determinat
ISSN:0033-3441
2162-8181