Jury still out on effects of closing GSBCA

A year after the Clinger-Cohen Act shuttered the General Services Administration's Board of Contract Appeals as a venue for information technology bid protests agencies vendors and attorneys cannot agree if the law has improved contract litigation.

How people view the performance of the General Accounting Office which is now the main protest arbiter depends largely on their personal experiences under the new rules and their interpretation of numbers GAO has reported about the outcome of the cases that have come before it. "I don't think there is any empirical evidence right now " said Alex Tomaszczuk a lawyer with Shaw Pittman Potts & Trowbridge and the chairman of the Federal Bar Association's Government Contracts Section.

GAO statistics that were generated at FCW's request cover IT protests between Aug. 8 1996 when the Clinger-Cohen Act became effective and July 15 1997 appear to confirm vendors' widely held belief that it is harder to win a protest today. During the period GAO dismissed fewer cases than did GSBCA in its final nine months but sided with the plaintiff only 12.7 percent of the time in the remaining cases compared with 37 percent at GSBCA.

"Clearly it's still a significant uphill battle if you're taking a protest to GAO " said Bob Dornan senior vice president with Federal Sources Inc. and a frequent critic of the agency.

But Tony Gamboa senior associate general counsel for procurement law with GAO countered that "you do get your day in court here." He said the statistics do not completely reflect cases in which the agency and the protester settled their differences without a ruling an outcome that he said GAO vigorously pursues.

GAO reported a 24 percent "effectiveness rate" that Gamboa said "is as high as you would get in the courts." But he continued even this figure - which includes protests granted and those dismissed when the contracting agency took corrective action - does not include cases in which the parties chose alternative dispute-resolution procedures or failed to report why they did not pursue a formal decision. GSBCA did not report the reasons why any of its cases were dismissed.

"There's this basic assumption that the GSBCA percentages on sustained protests reflected absolutely the percentage of protests with real merit that couldn't get resolved any other way " said Joel Lipkin vice president of business development with Government Technology Services Inc. which had its recent contract award in the Army's Portable-2 buy upheld by GAO. "For people to say that GAO has a lower rate of sustained protests obviously that's true but maybe it's a better measure of protests with merit."

Nor is it clear whether the change in venue has deterred protests because vendors think it is less likely they will win as many procurement experts predicted last summer. In the past year losing bidders filed 140 IT protests with GAO - two-thirds more than were filed with GSBCA in its last nine months but one-fifth fewer than were filed with GSBCA in fiscal '95.

"To the extent it's not a meaningful forum you are going to be less likely to use it " said Sid Wilson account executive with L.A. Systems a firm that lost a GAO protest of a Defense Information Systems Agency award.

Furthermore he said vendors now think twice about protesting when the suit might influence how that agency rates their past performance in a future competition.

But vendors also are being encouraged to work out their differences in agency-level protests under new reform-inspired procedures. "We've had five agency protests within about the last two months " said David Sudduth a procurement analyst with NASA's Headquarters Operations Division. "In two of those cases we have gone back to [the contracting office] with instructions for corrective action. Our suspicion is we will get many less GAO protests and many more agency protests."

Robert Kenney a lawyer with Hogan & Hartson Washington D.C. said there has been a general trend toward firms "becoming more conservative about protesting " and he has not noticed a "dramatic shift" in the number of cases he pursues. "There's no less dissatisfaction among losing offerors and no less suspicion that something improper may have occurred than there has ever been."

The change in the protest venue was pushed by agencies that sought relief from GSBCA's court-like procedures and to a large extent they seem to have gotten their wish.

Steven Kelman administrator of the Office of Federal Procurement Policy said he thinks that is one reason why agency officials say procurement is no longer an obstacle to buying IT.

A private lawyer who asked not to be named charged that even though GAO hearing officers gather "a lot of information" about a case they issue decisions "that don't address all the issues." Meanwhile Victor Salgado senior attorney with NASA said the GAO practice of allowing "ex parte communications " or discussions among lawyers and hearing officers outside formal proceedings "is going to add a dimension of unpredictability."

Dan Gordon associate general counsel with GAO said the agency cannot always rule on every issue raised in a case but it is rare that the agency is accused of failing to rule on one of the "two three or four" most important points in a case.

Gordon said GAO has become stricter about not allowing ex parte discussions insisting on conference calls between opposing sides. But he said the agency cannot stop the "pingpong" of comments and responses requested by parties after they make their initial arguments. "I don't think we're disorganized " he said. "We are not going to write a decision based on an incomplete record if we can avoid it."