History of Protests in Government Contracting - Research Paper Example

?History of Protests in Government Contracting Table of Contents Table of Contents 2 Introduction 3 Thesis ment 4 0.Discuss the three ways an offeror can protest (Agency, GAO, COFC) 4 Agency Level 5 Government Accountability Office (GAO) 6 Court of Federal Claims (COFC) 8 2.0. Discuss the Evolution of Contract Protests to Include the Administrative Procedure Act of 1946 and the Competition in Contracting Act (CICA) 1984 9 Administrative Procedure Act (APA) of 1946 9 Competition in Contracting Act (CICA) 1984 10 Conclusion 11 Works Cited 12 Introduction ‘Contracting’ is often defined as a process of legal hiring or transfer of ownership through purchase, renting or leasing. It is also applied as a method of acquiring services as well as supplies from non-federal sources. There are essentially six different phases which for implementing the government contracting processes such as procurement planning, solicitation planning, solicitation, source selection, contract administration and contract closure (Rendon 9-14). It is worth mentioning in this regard that the ultimate mission of government contracting is to develop an environment for small as well as disadvantaged businesses to participate in contract awards of the federal government as well as in major subcontract awards. Furthermore, government contacting assists small businesses in the procurement processes to obtain greater competencies in the federal world (SBA. GOV, “Office of Government Contracting”). Government contracting is also considered to be an important method of assessing opportunities for businesses. It is in this context that government contracting is often utilized for acquiring important information with the objective of less riskier performance of businesses along with competitiveness in the global market (American Express Company, “An Introduction to Government Contracting”). However, at many instances, offerors are observed to reveal dissatisfactory experiences in relation to the method executed for governmental contracting owing to which they are provided with the leverage to protest. Thesis Statement The discussion will emphasize on the three different procedures through which an offeror can protest in the government contracting method. Moreover, the discussion will also emphasize on the evaluation of contract protests which include the Administrative Procedure Act, 1946 and the Completion in Contracting Act (CICA), 1984. 1.0. Discuss the three ways an offeror can protest (Agency, GAO, COFC) An offeror who is not satisfied with the government contracting method can adapt three ways or procedures for protesting against the method. One of the options to protest against the government contracting method is by filing a bid protest. The bid protest can be lodged with the agency, where an agency-level bid protest is required to be resolved by a Contracting Officer (CO). The bid protest can also be filed with the Government Accountability Officer (GAO), or with the US Court of Federal Claims (COFC). However, according to the enacted rules and policies, an offeror filing a protest at the agency level is required to lodge a bid protest before the GAO or COFC. Moreover, if the offeror is required to file a protest bid with the GAO, he/she needs to file another bid protest to the COFC as well (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). Agency Level An offeror who is disappointed with government contracting can file a bid protest with the agency. In this procedure, protests which are made at the agency level are sorted out by the CO or by any higher authority at the primary level. Many a times, protests at the agency level can also be decided by high ranking officials of an agency or by any other official who is not involved with the procurement process (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). It is worth mentioning in this context that protests which are filed with the agency are required to be precise and presented in a concise structure for the obtainment of a better review by an agency. The requisite information relating to name, address, contact number as well as relevant documents among others are also required to be disclosed for the successful execution of the entire process and effective protest resolution. The protest registered or filed is then reviewed by the CO or an official ranked in a higher authoritative position to the rank of the CO (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). When an agency receives a protest before awarding the proposal, in such cases contract is not awarded. The agency takes actions for protest resolutions and justifying the award of the contract in writing. Moreover, on withholding the contract proposal, the CO is required to inform offerors, unambiguously, about the offers that can be the most beneficial when awarding the contract. In instances, when protest is received within 10 days after awarding contracts, the CO is required to suspend performance and take steps for resolving protests. Contextually, for the more efficient continuation of services, protests should be made in written after confronting with higher level officials along with the CO. Agencies are required to sort out the protest within 35 days of filing. Furthermore, the decisions which are made by an agency are required to be reasonable as well as logical in this context (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). The decisions which are made at the agency level are often regarded to be quite economical as well as mostly informal in its approach. Moreover, protest at the agency level is also considered to be a simple as well as a swift method of protest resolution in comparison to GAO as well as COFC, majorly because the protest at the agency level is reviewed by professionals who are experienced in the procurement process (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). Government Accountability Office (GAO) GAO plays is often considered to play the most important role in deciding as well as resolving disputes in the procurement process implemented through government contracting. GOA also provides expertise information for dispute resolution in the process of procurement to all Federal Government agencies as well as departments. The Budget and Accounting Act of 1921 founded the GAO which operates as an independent agency leaded by the Comptroller General of the United States. Moreover, GAO is entitled with the task of enquiring as well as investigating matters which are related to payment and receipt along with utilization of public money. It is in this context that the Office of General Counsel of GAO is accountable for offering legal suggestions to its members as well as to its committees. Moreover, GAO also assists with effective decision making relating to legal matters to executive agencies’ officials (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). According to the set principles, GAO is required to perform resolution activities after analyzing the requirements of the protest procedures to be appropriate and in correspondence with the set principles in order to comprehend the complain as valid. Notably, protests which are made with concern to issues relating to contract administration are not considered as a protest by the GAO (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). GAO considers issues relating to procurement process, where the protestor is required to be a potential offeror who is directly involved with the economic interest or failure of a particular contract. Additionally, the protest needs to be made with adequate information and within a short span of time. Moreover, when an agency is provided with a filed protest before awarding a contract, such contract is required to be upheld until decisions are made with such contracts. Furthermore, the GAO is also entrusted with the responsibility of ensuring that the solicitation as well as proposed awards satisfies all the requisite regulations. The protests which are made to the GAO are required to be filed in written form and must also be signed by the protester(s). Correspondingly, decision on a protest is principally rendered within 100 days from the day of the filing (Schaengold, Guiffre, and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). Court of Federal Claims (COFC) COFC has judicial authority over pre-award as well as post-award protests when concerned with contracts relating to governmental agencies. The main objective of COFC is to ensure that decisions made for the procurement process in an agency in accordance with law and the decisions which are made in violation of any regulations are set aside in order to make certain that the judgments rendered are rational. It is in this context that the Rules of the Court of Federal Claims (RCFC) are prepared in accordance with the Federal Rules of Civil Procedure. However, unlike the cases of protest resolutions in the agency level and GAO, the decisions made in COFC are observed to take longer time period without any deadlines for filed protests. The protesters opting for this option are further required to comply with the entire requisite requirements noted by GAO for the permanent injunction of the complaint registered. COFC performs jurisdiction operations after the protester(s) or the agency(s) conveys the judgment rendered by GAO as unsatisfactory (Schaengold, Guiffre and Gill, “Choice of Forum for Federal Government Contract Bid Protests”). 2.0. Discuss the Evolution of Contract Protests to Include the Administrative Procedure Act of 1946 and the Competition in Contracting Act (CICA) 1984 Administrative Procedure Act (APA) of 1946 The APA Act of 1946 contains fundamental rules as well as regulations for governing the administrative procedures required for the efficient performance of federal agencies. Moreover, APA Act provides the processes which are required to be followed by administrative agencies of the federal government. It is worth mentioning in this context that the number of administrative agencies has increased in a dramatic manner during the year 1930 where new programs were implemented with the intention of effective performance of new deals conducted by government contracting. Furthermore, it was necessary for agencies to perform in accordance with administrative procedures to make sure that the agencies perform impartially as well as in a fairly transparent manner. The attorney general of US was directed by the 32nd US President Mr. F. D. Roosevelt to establish a committee with the sole intention of revising the administrative procedures with greater efficiency. The committee was entrusted with the responsibility of improving the procedures as well as to make these procedures standardized for agencies. Moreover, these procedures were formed into APA Act in the year 1946 when the 33rd US President Mr. H. S. Truman passed the bill into law (Richardson 49-52). The main aim of the APA Act of 1946 has been to ensure that federal agencies are required to follow minimum procedural standards for efficient performances of agencies. Moreover, in accordance with the enacted APA Act of 1946, agencies are required to unambiguously inform public about their organizational proceedings as well as rules and regulations. Furthermore, public should also be provided with the opportunity of participating in the development of rules within the governmental agencies allied through contracts. It is in this context that the APA Act 1946 is considered as standardized procedures for making rules as well as adjudicatory functions (Richardson 49-52). Competition in Contracting Act (CICA) 1984 CICA was formed in the year 1984 with the motive of promoting full as well as open competition. CICA also facilitates federal agencies for adopting competitive techniques of procurement on contractual basis. CICA also requires executive agencies to acquire competition advocates with the intention of promoting competitive techniques of purchasing. It is worth mentioning in this context that contract of procurement, which is not in accordance with procurement procedures are regarded as CICA. Contracts are regarded as CICA after those are performed with accordance to the approved guidelines except in few instances where agencies were permitted to perform with non-competitive procedures or relaxed guiding principles to a certain extent. Contextually, CICA acts as a foundation for the condition of current competition; however, it has been modified with laws at repeated instances to improve as well as expand operations of agencies for contracting purposes of commercial items (Manuel 1-17). Correspondingly, the Federal Acquisition Streamlining Act (FASA) was enacted in the year 1994 with the intention of determining choices for procurement activities of commercial items which were not included in ‘full and open competition’ of CICA. Moreover, there are some other acts such as Federal Acquisition Reform Act (FARA) and Service Acquisition Reform Act (SARA) among others, which had been formed to amend CICA for better performance of agencies in a competitive manner (Manuel 1-17). Conclusion With reference to the above discussion, it can be observed that there are certain procedures or phases which are required to be followed while conducting government contracting. The main objective of government contracting is to improve the environment of small entrepreneurial projects which largely involves women populaces. In contractual activities when an offeror is not satisfied with the procedures adopted for government contracting, he/she can file a protest in three different ways which are through CO, through GAO or through COFC. CO is valued at the primary option of protest entitled to sort out agency level complaints. However, if a protestor or an agency is not satisfied with the decisions made by the CO at the agency level, he/she can approach to GAO and further to COFC for the satisfactory settlement of the protest. Various laws have been implemented with this purpose including the APA Act of 1946, which is often considered as a standardized procedure required to be followed by agencies for performing contractual activities efficiently. Moreover, this Act was formed for assisting federal agencies to conduct government contracting activities in accordance with rules as well as regulations. It was in this context that CICA was formed to promote competitive procurement method among agencies and agencies are required to adopt certain competitive procurement techniques to operate in a more competitive manner. Works Cited American Express Company. An Introduction to Government Contracting, 2009. Web. 26 Dec. 2012. Manuel, Kate M. Competition in Federal Contracting: An Overview of the Legal Requirements. United States: DIANE Publishing, 2010. Print. Rendon, Rene. Government Contracting Basics. United States: Management Concepts, 2007. Print. Richardson, Elizabeth C. Administrative Law and Procedure. United States: Cengage Learning, 1996. Print. SBA. GOV. Office of Government Contracting, n.d. Web. 26 Dec. 2012. Schaengold, Michael, J., Guiffre T. Michael, and Gill Elizabeth M. “Choice of Forum for Federal Government Contract Bid Protests.” The Federal Circuit bar Journal 18.2 (2012): 243-329. Print. Read More