The DOD authorization bill for fiscal 1996 repeals the Brooks Act and, without much fanfare, changes the way every information technology federal contractor—and their lawyers—will do business with the government.
The most significant impact of the revocation of the Brooks Act is the elimination of the protest jurisdiction of the General Services Administration's Board of Contract Appeals, the preferred forum for the resolution of protests in procurements for ADP equipment and resources. After Aug. 10, all ADP protests will have to be filed at the General Accounting Office. During the debate on the repeal of the Brooks Act, conventional wisdom had it that the only proponents of GSBCA's protest jurisdiction were government contracts lawyers, seeking to profit from that forum's more expensive procedures. The truth is, however, that the effect of the eradication of GSBCA's protest jurisdiction will not be limited to lawyers. Contractors are likely to experience a lack of meaningful relief, delay and limited access to information and increased barriers to entry to the federal marketplace as a result of the new regime.
In every completed procurement there is a contract awardee and a disappointed offeror or bidder. While many disappointed offerors never protest, for most contractors there will come a time when they believe they have been wronged by the procurement process. It has been my experience that contract awardees who have participated in defending an agency against a GSBCA protest overrate the effectiveness of the GSBCA protest mechanism. In this forum, only one out of three protests is granted. Furthermore, given the expense of GSBCA litigation, even successful protesters feel they have paid dearly for the simple right of being treated fairly.
The elimination of GSBCA's protest jurisdiction will only exacerbate this feeling of disenchantment. Statistics predict a GAO protest success rate of one in five to barely one in 10. More often than not, these are Pyrrhic victories. At GSBCA a contract award will be suspended during the protest unless the government can demonstrate to GSBCA the existence of "urgent and compelling circumstances" warranting proceeding with contract performance. At GAO, agencies may themselves determine if suspension is necessary using a more lenient standard. If the contract awardee is permitted to perform during the protest, GAO will not, theoretically, take into account the cost to the government of terminating the protested contract in fashioning a remedy. However, because GAO only makes "recommendations" in protests, which must be voluntarily implemented by the agency, the termination costs to be incurred by an agency as a result of a successful protest are a hard fact to ignore. Even if the prevailing protester succeeds in securing another opportunity at the contract award, prevailing protesters must overcome the disfavor engendered by the protester's filing the protest in the first place. The relief available to a successful protester at GAO, therefore, will rarely be the relief sought—the contract award.
Digg
De.licio.us
Slashdot
Technorati
