Agency Protest vs General Accounting Office Protest - Case Study Example

agency protest versus general accounting OFFICE (GAO) PROTEST Introduction Key challenges facing developing nations are significantly caused by high level of corruption, misuse of public funds and ineffective management of public institutions. It is vital to note that if a government procurement department is regularly able to acquire the right items at the right price, it can optimally use the tax payer’s money thus attracting public confidence. Additionally, this would ensure that governments have the necessary goods and services that are vital for the achievement of social, political and economic developments. One of the major initiatives that have been put in place by developed countries is procurement reform. This include establishment of mechanisms through which offerors can question the officials in charge of the procurement procedures in the government departments. In case the procuring agencies are not compliant with the law and regulations governing the procurement process, the aggrieved parties undertake the bid protest. The major forms of federal bid protest include an agency-level protest, protest through the Government Accountability Office (GAO) and the jurisdiction through United States Court of Federal Claims (COFC) (GAO-03-673G Government Auditing Standards, 2012). This paper seeks to compare and contrast an Agency Protest to a General Accounting Office (GAO) Protest. Important aspects of Agency Protests Federal Acquisition Regulations (FAR) 33.103 gives the guidelines that must be followed by the agencies during addressing of the protests generated by the offerors. Having being established by the Executive Order 12979, agency protest stipulates that all the concerned parties must take all the necessary steps to ensure that the conflict is solved in an amicable way. Even though the government has clearly outlined the regulations that control the agency protests, most of the agencies complement the FAR provisions by initiating their own regulations that are not favorable to the offerors. A protest is initiated by an interested party. An interested party is the individual whose economic interest would be adversely affected by the failure to win a contract or through the award of the contact (Robert, 2012). This is one of the major aspects that are common both to agency and GAO protests. There is no jurisdiction on the protests that an agency can handle, since it has the authority to deal with all the protests that are related to its contracts. However, according to Federal Acquisition Streamlining Act, a protest that is related to delivery order contracts or issuance of task that can be given to various contractors when an agency is in need of particular services or goods cannot be considered by an agency. In such cases, the aggrieved individuals institute a complaint to the delivery order ombudsman as provided by the FAR 16.505 (Federal Acquisition Regulations). The first step during protesting to an agency involves providing a written submission to the contracting officer (CO) indicating the key causes of the protest. Upon the receiving of the written details of the protests, the agency determines whether or not the protest will be handled by the contracting officer or by an official with higher authority in the agency. In the case, the contracting officer address the protests, an independent body is formed by the agency with an aim of reviewing the decisions taken by the contracting officer. According to the federal acquisition regulation, it is not mandatory for an agency to provide a written report as a response to the claims from the offeror. This makes some agencies to provide written report to offended individuals. Additionally, FAR limits the protestor from replying to the responses put forward by the agency. However, some agencies provide the protestors with opportunities where they can reply to the responses from the contracting officer of from other agency authority. One of the legal aspects of the agency protest is that it does not allow protestors to seek vital documents that are related to the procurement. The law only allows the exchange of the relevant information between the agency and the protestor. This is the information that is necessary for the parties to reach a consensus. This implies that FAR does not specify protective orders to control the information possessed by the agency since the agency has no authority to disclose the information to the protestors. Even though there are no legal requirements for offerors or the individuals who have won the contract to intervene during the agency protest process, the agencies are given autonomy to consider the views of other offerors during their decision making process. Steps involved in Agency Protest process As mentioned earlier, the basis of agency protest must be forwarded to the contracting officer in a form of writing. These protests must be received within 10 working days. It is important to note that protests that are based on the ineffectiveness of the bidding process are filed before the closing time of receiving the proposals from the bidders. If a protest is made after the elapse of the 10 days, it is not considered by the contracting officer (GAO-03-673G Government Auditing Standards, 2012). Additionally, after a protest is filed within the stipulated time, a consultation between a contracting officer and the Assistant General Counsel (AGC) is undertaken. This is followed by a notification to the protestor of the action taken after consultation. In case the protest can be solved promptly, the contracting officer is under obligation to notify the protestor. In the same way, if a more concrete decision is needed to be made by GAO, the CO must also notify the protestor in form of writing. This is followed by a consideration by the contractor to defer the contract performance. It is vital to note that for the purpose of the agency protest, a day is a calendar day. It is also significant to note that even though the days an offeror is given to provide a protest can be extended, it should not exceed 14 days after the causes of the protests are known whichever comes earlier. After the protest is received by the agency, a contracting officer has 14 days to prepare a report that addresses the claims raised by the protestor as well any other issue that is deemed fair for the purpose of streamlining the process of procurement. Within that time, the CO should forward the report to the law section of the procuring department as well as to the Office of the Assistant General Counsel that is responsible for tackling litigation and finance matters. The Protest Decision Authority should issue a report within a period of 35 days from the date that the protest was issued. However, this happens if a 1 day extension is not granted to the CO to provide a report to the Protest Decision Authority. In case an extension is issued, all the interested parties including the protestor must be notified by the Protest Decision Authority. The final report of the Protest Decision Authority report can give any of the following remedies. First, it can entirely terminate the contract. Secondly, the requirements of the contract can be re-competed. Thirdly, a new solicitation may be issued. Fourthly, the PDA can refrain from implementing the various options outlined by the contract. Fifthly, an award that is consistent with the regulations can be awarded. The process followed during the agency protest can be summarized by the flowchart below. Example of a case under agency protest The winning of a contract by Provider Resources (PRI), a Pennsylvania based firm led to a protest by Data and Analytic Solutions (DAS), Inc that is based in Virginia. According to the protestor (Data and Analytic Solutions) Provider Resources was not qualified to provide services that entailed the evaluation of workers’ compensation Medicare, in response to the proposal NO. CMS-2010-8(a)-0043 that was issued by Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) (Data and Analytic Solutions, Inc.B-405278.2, 2012). Even though DAS protested on the ground that its proposal were not properly evaluated by the agency among other factors, the protests was denied on the basis that the new protest challenges were filed 10 days after DAS received the agency report. General Accounting Office (GAO) General Accounting Office is autonomous body that was established in 1921 by the Budget and Accounting Act. Being led by a Comptroller General of the US, GAO is responsible for investigating how the federal government utilizes the funds collected from the US taxpayers. Major legislations that have been enacted to expand the duties of GAO include the 1946 Legislative Reorganization Act, Government Control Act of 1945, 1974 GAO Act, Accounting and Auditing Act of 1950 among others. Duties of the GAO include auditing of the federal financial activities to determine whether tax payer’s money is properly spent. Secondly, it investigates assertions of improper and illegal government activities. Thirdly, GAO gives ruling that are related to bid protests. Fourthly, it analyses and makes alternative policies that the congress can adopt. Fifthly, it gives a report on the conformity of its objectives with the government policies. As mentioned above, the major role of GAO is to provide resolutions to disputes that are propagated by the contracts awarded by federal governments. The major legislation that cleared the ambiguities of GAO as an avenue of solving the problems faced by aggrieved offerors was the Competition in Contracting Act (CICA) that was enacted in 1984. As a result of the Act, GAO has put in place various regulations that control bid protesting as depicted by 4 C.F.R., Part 21.As compared to the agency protest where contracting officers or higher authority are responsible for deciding protests, the Procurement Law Control Group is the key organ that is empowered by GAO to make protests decisions (Shaw, 2010). Individuals who may emulate General Accounting Office protest According to the Competition in Contracting Act, any individual whose economic interest would be affected when a contract is awarded to him or her or otherwise can file a protest. For a prospective bidder or offferor to qualify as an interested party, GAO examines whether a winning protest would allow the contractor to take part as a bidder regardless of whether an individual did so in the first round. Due to lack of direct economic interest, the position of an interested party is not accorded to associations or organizations which do not undertake government contracts. GAO Protesting Process A protest undertaken via GAO starts after a protest is filed with the Procurement Law Control Group. Such protests can be sent to the concerned authority through mail, hand delivery, fax or by commercial carriers. Some of the vital aspects that a protest covers include details of the solicitation, major reasons of protest and the timeliness of the protest (Federal Acquisition Regulations). It is important that protestors must send a copy of the protest to the procuring agency within 1 day after filing the protest. After the receiving of the protest, GAO must inform the agency through a telephone within 1 day that it has received the protest from an interested party. In case a protective order is requested, a redacted copy that is aimed at informing the interested party of the protest must be filed by the protestor within 1 day after the filing of the first protest. This is followed by acknowledgement by GAO that it has received the protest, creating a deadline for preparing the agency report and entering of a protective order. Within 10-20 days, GAO must provide an agency motion that depicts the dismissal of part or the entire grounds of the protests filed by the aggrieved party. After which the protestor is given a chance to respond to the decisions made by GAO. In case the protestor requests documents that pertains the contract from the authority, GAO is under obligation to provide such documents before filing of the agency report. GAO must also notify the protestor if the documents that he or she requires are withheld based on the legal requirements. On their part, the protestors are given 2 days to file an objection pertaining to the withholding of the documents. Within 30 days after the protest is initiated, any intervenor as well as the protestor must be served with the agency report. This is followed by a 10 days period within which a protestor or an intervenor should forward his or her comments on the agency report. This period can be extended by not more than 10 days (Michael, 2011). Response of the protestor’s comments from the agency should be made within 10 days. However, depending on the complexity of the extra protest, this period can be extended but not more 30 days. Within 7 days after a protestor receives a response from the agency, he or she should reply. In case a supplemental agency report was issued as a result of the supplemental protest, protestors have 10 days to respond on the report. After the comments period is over, GAO can hold a 1 day hearings that covers the facts that have been disputed by the interested parties. After the hearings, parties concerned are given 5 days within which they should give their comments regarding the hearings (Robert, 2012). According to the GAO regulations, decisions on the protests must be made within 100 days. The flowchart below depicts a summary of the key issued covered during GAO protests. Example of a case under GAO protest This case is related to a Request for proposal No. W9126G-11-R-0128 that was issued by Army Department in US for the purpose of constructing a conference center and improvement of Homeland Security Training Center. (McTech Corporation, B-406100, B-406100.2, 2012. When the GAO excluded McTech Corporation from bidding based on the fact that an organizational conflict of interest (OCI) existed in McTech, the company protested. However, after a thorough analysis, GAO realized that actually McTech had an OCI that would have propagated unfair competitive advantage. In this regard, the protest was denied. Conclusion Based on the discussion above, it is clear that the responsibilities of GAO and US Government Agencies cannot be ignored. Having been created by Budget and Accounting Act of 1921, the various legislation initiated by US government, have enhanced the duties of GAO making it to effectively monitor and report on the performance of congress. In addition, through its legal procedures, aggrieved parties have strong confidence on GAO duties based on its accountability and effective decision making process. In the same way, agency protest has offered an effective and less costly avenue through which aggrieved parties can forward their protests to the relevant authorities. In this regard, accountability and professionalism are major aspects that have enhanced procurement process in US an aspect that developing countries should emulate in their efforts to have a good governance. References Data and Analytic Solutions, Inc.B-405278.2, 2012. http://www.gao.gov/assets/590/589189.pdf Retrieved March12, 2012. Federal Acquisition Regulations (FAR) http://www.sba.gov/content/federal-acquisition-regulations-far. Retrieved March 10, 2012. GAO-03-673G Government Auditing Standards. (2012). http://www.gao.gov/govaud/yb/2003/html/chap16.html. Retrieved March 10, 2012. Michael B. (2011).What Is The FAR? New York: Macmillan Publishers. McTech Corporation.B-406100, B-406100.2. (2012). http://www.gao.gov/assets/590/589072.pdf. Retrieved March12, 2012. Robert L.(2012). About the Government Accountability Office: The investigative arm of the U.S. Congress. http://usgovinfo.about.com/cs/uscongress/a/aboutgao.htm. Retrieved March 10, 2012. Shaw, N. (2010). The Power to Procure: A Look inside the City of Austin Procurement Program. Applied Research Projects. New York: Texas State University. Read More