GSBCA's opponents use flawed ideas to do away with board
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As this column is being written, the General Services Administration Board of Contract Appeals is almost sure to lose jurisdiction over information technology bid protests. In 1984, as part of the Competition in Contracting Act, Congress amended the Brooks Act to let the board hear such protests. The goal was having bidders enforce the procurement laws through protests. A fair and competitive system would ensure that taxpayers got their money's worth.
As this column is being written, the General Services Administration Board of Contract
Appeals is almost sure to lose jurisdiction over information technology bid protests.
In 1984, as part of the Competition in Contracting Act, Congress amended the Brooks Act
to let the board hear such protests. The goal was having bidders enforce the procurement
laws through protests. A fair and competitive system would ensure that taxpayers got their
money's worth.
Now, Congress is prepared to abolish the board protests. How did we come full circle in
a decade? There is no simple answer but plenty of blame to go around.
Last year, the administration set out to destroy GSBCA's protest jurisdiction. This
drive united two powerful forces.
Agencies generally have opposed the board's protest jurisdiction. Government
procurement officials are no fonder of oversight and scrutiny than anyone else. Every
official who lost a protest is a potential opponent of the board.
The other antagonist has been the administrator of the Office of Federal Procurement
Policy. As a professor of political science, Steven Kelman concluded that procurement
officials were reluctant to use their judgment. As OFPP administrator, he believed that
the mere possibility of a protest inhibited contracting officers. Kelman's strategy has
been to frame this conjecture in the language of the government's reinvention movement.
This won him high-level support in the administration.
The case against the board is built on several questionable assertions.
First off, critics point out that the rate at which GSBCA upheld protests was three
times that of the General Accounting Office. They said this proved the board was too
intrusive.
But a statistical comparison by Richard Lieberman, published in the Bureau of National
Affairs' Federal Contracts Report, showed that the rate at which the board sustained
protests was comparable to that of the federal court. Only when courts find a prejudicial
violation of statute or regulation, or that a government action has no reasonable basis,
will they uphold a protest suit. Thus, the real question is not why GSBCA upholds so many
protests, but why GAO upholds so few.
A related criticism: GSBCA second-guesses the reasonable decisions of contracting
officers, producing fear and timidity. In theory, the board reviews such decisions anew
and so can substitute its own judgment. In practice, however, GSBCA imposed a heavy burden
of proof on the protesters. As a result, the government always got the benefit of the
doubt.
Opponents also cited another misconception--there are too many protests. But the
numbers don't add up. The board averaged about 250 protests a year, fewer in recent years.
But there are about 1,700 IT procurements over the small purchase threshold each year.
Only a small minority of these ever got to the board.
Although the case against GSBCA didn't hold water, it's timing couldn't have been
better. The board's main champion, Rep. Jack Brooks (D-Texas), had been swept out of
office by gun enthusiasts. Sen. William Cohen (R-Maine) made IRM reform his issue. For
Cohen, reform means repeal. The board's protest powers will perish with the death of the
Brooks Act.
The private bar had too much self-interest to be an effective advocate. Some
lawyers--but by no means all--ran up costs by overstaffed and overly aggressive
prosecution of protests. Depositions in particular were subject to abusive practices. Some
of the board's most vigorous opponents were government officials who resented an
interrogation that was tiresome, contentious and interminable. As with most courts, the
board was too busy to police the discovery process.
In the last analysis, the half-hearted support of industry and the opposition of some
contractors doomed the board. Some vendors felt--perhaps correctly--that they were better
off if the rules weren't enforce all that well. Others apparently thought that, although
more effective, GSBCA protests were too expensive.
Of course, there are other ways to reform IT procurements. A better trained procurement
work force and more openness with bidders about government needs would go a long way
toward gaining trust and producing results. These steps, however, might not produce such
results during the life of an administration or a session of Congress. Destroying protests
and calling it reform is much cheaper and quicker.
Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &
Associates.
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