Handling Procurement Complaints:
Issues & Challenges
Regional Public Procurement Forum
Tirana, Albania
May 2012
Daniel I. Gordon
Associate Dean
for Government Procurement Law
The George Washington University
Law School
Washington, DC
Names for Procurement Complaints
• Domestic review procedures (WTO)
• Challenges (UN Commission on Int’l
Trade Law, UNCITRAL)
• Remedies (EU Directive)
• Protests (or bid protests) (US)
• Complaints (generic)
Complaints During the
Three Phases of a Procurement
– Pre-award: Protests include allegations that a
solicitation is defective (for example, that it
improperly restricts competition)
– Award: Protests include allegations that a contract
award is improper (for example, that selection was
unreasonable or inconsistent with the solicitation
award criteria)
– Post-award: Complaints in this phase are generally
between the government and the firm that has won
the contract – these are not protests
Competing Demands on Protest
System
• Provide a forum to hear complaints by, and
grant relief to, interested parties
• Enhance accountability of procurement
officials and government agencies
• Promote transparency into how the
procurement system works
• Protect integrity of procurement system
• Avoid unnecessary cost and delay &
disruption of procurements during protest
process
Handling Competing Demands
• There will always be tension between protecting the
interests of the disappointed bidder (who would like
unlimited process at any time) and avoiding undue
disruption to the procurement system (which needs
closure)
• The relative importance a state gives to the competing
demands will drive the trade-offs made in defining the
structure of a bid protest system
• Choices about the priority given to the competing
demands must consider a state’s values and the nature
of the challenges its procurement system faces
Key Decisions
Regarding a Protest Forum
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Where is the forum located?
How broad is the forum’s jurisdiction?
Who is allowed to protest?
How is the issue of the finality of signed contracts handled?
How strict are time limits for protesting to the forum?
Is the procurement put “on hold” while the protest is pending?
How is abuse of protest process avoided or dealt with?
How long does the forum have to decide the case?
What evidence does the forum have before it in reaching its
decisions?
• How difficult is it for a protester to win a protest?
• What power does the forum have to offer (and enforce)
meaningful relief?
Locating the Protest Forum
• 3 options:
– Court
– Independent administrative forum
– Contracting agency
• Each has advantages & disadvantages
• “Exhaustion” issue
Possibilities Regarding
Breadth of Jurisdiction
• Jurisdiction over which agencies?
• Exemption for national security agencies?
• Exemption for entities below national level?
• Jurisdiction over which decisions?
• Use of contractors (vs. gov’t staff)?
• Details of procurement (method,
specifications)?
• Subcontracting decisions?
Possibilities Regarding Parties
• Before award, is the right to protest limited to
firms that show they would win?
• After award, is the right to protest limited to
the next-highest-ranked competitor?
• Is the successful competitor (the “awardee”)
permitted to participate? Is it required to
participate?
Possibilities Regarding
Expertise of Forum & Representatives
• Is the protest forum composed of judges,
attorneys, or experts?
• Must protesters be represented by an
attorney?
• Will the agency represent itself, or be
represented by a government-wide office
of counsel?
Dealing with Signed Contracts
• If the system precludes cancellation of signed contracts, is
there a way to preserve the possibility of review prior to
signature?
• If the system allows cancellation of signed contracts, is
there a way to ensure that signed contracts are, at some
point, final?
Implications of Timeliness Rules
• Strict timeliness rules for filing can allow significant
problems to escape oversight
. . . but generous timeliness rules may delay
procurements and/or make finding a meaningful
remedy later difficult and expensive
• Uniformity in timeliness rules has benefits
. . . but there are benefits in having different time
limits for solicitation & award challenges
. . . and should timeliness be stricter if interim relief
is sought?
Possibilities for Interim Relief
• Does the filing of a protest stop some/all progress in
the procurement while the protest is pending?
• Does this depend on which phase is being challenged?
• Does the right to interim relief turn on a preliminary
assessment of the merits? on timing?
• May the agency invoke particular needs to justify going
forward?
• What deterrent, if any, is there to prevent agencies from
going forward?
Avoiding Abuse
• Danger of abuse of the protest process:
• Excessive protests can disrupt procurements
• Can serve as improper leverage against gov’t or
other contractors
• Steps to avoid or counter use:
• Filing fees (but note risk)
• Prompt dismissal of frivolous protests
• Penalty/fine for frivolous protests (but note risk)
Implications of Time for Decision
• A longer time for decision allows for more
meaningful review, but disrupts
procurements longer
• A shorter time for decision may preclude
meaningful review, but disrupts
procurements less
Possibilities Regarding Evidence (I):
Agency Documents
• What documentation must the contracting
agency furnish to the protest forum?
• What are the consequences of failing to
document events on which the protest
turns?
• Does the contracting agency have the
opportunity (or the obligation?) to explain its
position in post-protest documents?
Possibilities Regarding Evidence (II):
Beyond Documents
• Are agency officials subject to in-person
interview, deposition, or testimony before the
protest forum?
• Can appearance of a specific official be compelled?
• May the protester participate in witness
examination?
• Are hearings or trials allowed? If so, how
common are they?
Other Procedural Possibilities
• May the agency request dismissal prior to producing
documents?
• May agency render the protest moot by offering to
reconsider the award or take other corrective action?
• Does the forum offer alternative dispute resolution?
Questions about Standard of Proof
• What standard of evidence must be shown before
relief is granted?
• How much deference is shown to agency
judgments on technical evaluations?
• Is more deference shown when national defense
or life/safety equipment is at issue?
• May agency substitute/supplement new or
alternative rationale for award during protest?
Possibilities Regarding
Protection of Confidential Information
• Is the protester allowed to review all/some/none of
the agency documents?
• Is the protester’s outside attorney (and outside
experts) allowed to review documents
confidentially?
• How is confidentiality of sensitive documents
protected?
Possibilities for Final Relief
• How often does the forum rule in favor of the protesting
firm?
• How much power does the forum have to provide
meaningful final relief?
• What forms of final relief are available?
• Are the costs of litigation shifted to the unsuccessful
party?
Issues Related to Decisions
• Can decisions be made public?
• How is sensitive information in
decisions handled?
• Are decisions subject to an appeal?