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Agency-Level
Protests. Prior to the issuance of Executive
Order 12979 in October 1995, agency-level protests were viewed
by many as an uncertain way to address concerns about irregularities in
the bidding process. Executive Order 12979 established the
agency-level bid protest policy framework which is today promulgated
under FAR
Subpart 33.103. Thus, agency-level protests are growing as an
important option for seeking redress on bid irregularities.
A
number of agencies have also issued internal procedures for handling
protests including the Army
Materiel Command (AMC), Department
of Energy (click
here for current version of DOE regulations), and NASA.
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GAO
Protests. GAO is viewed as the
"traditional" forum for bid protest hearings. This
agency has been issuing decisions on bid protests since about
1931. Today, the Comptroller General (head of the GAO) has
authority to issue bid protest decisions under the U.S.
Code (31 U.S.C. §§3551 et seq).
The agency's bid protest
regulations are promulgated under the Code of Federal Regulations (4
CFR Part 21). A virtual library of Comptroller General
decisions is also available at the GAO
website.
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Protests
Under the Court of Federal Claims. The COFC
derives its jurisdiction to consider bid protests from the Tucker Act
(28 U.S.C. §1491(a)(1), as well as the Administrative Dispute
Resolution Act of 1996 (28 U.S.C. §1491(b)). The Court is
authorized to hear protests filed by interested parties regarding federal agency procurements. The COFC
web site posts recent bid protest cases as well as bid protest
rules.
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Protests
Under the U.S. District Courts. The U.S. Supreme
Court held in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C.
Cir. 1970) that the Administrative Procedure Act confers to bidders the
right to challenge agency actions. However, only injunctions or
declaratory judgments were available to protesters under this
jurisdiction. The passage of the Administrative Dispute Resolution
Act of 1996 expanded available remedies under this forum to include
monetary relief. Visit the U.S.
District Court web sites information about court rules and recent
cases.
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Bid
Protest Appeals. In situations where a party is
dissatisfied with the outcome of a bid protest, appeal to a forum of
higher jurisdiction may be available. Assuming that jurisdictional
and other requirements are satisfied, agency-level and GAO decisions may
be appealed to a district court or the COFC. A District
Court decision may be appealed to the applicable circuit
court, and a
COFC decision may be appealed to the Court of Appeals for the Federal
Circuit.
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