A Critical Reassessment of the GAO Bid-Protest Mechanism

Abstract

This article critically examines the Government Accountability Office’s bid protest mechanism, which is designed to resolve disputed government contract awards. The GAO is the forum of choice for protesters, resolving thousands of bid protests each year, and its decisions, although technically recommendations, nonetheless receive significant deference from government agencies and courts. In recent years, however, the Court of Federal Claims has developed as an alternative, judicial forum specializing in procurement law disputes. The article examines the GAO’s perceived strengths in comparison to the Court’s alternative model. In light of the shortcomings exposed by this comparison, the article argues that agencies and courts should reconsider the deference often given GAO decisions and outlines frameworks through which actors may critically examine those decisions. It also suggests several changes that the GAO may make to improve its efficacy without sacrificing its efficiency.

Keywords: Government contracts, United States Court of Federal Claims, COFC