Late is late: the GAO bid protest timeliness rules, and how they can be a model for boards of contract appeals

Army Lawyer, Nov, 2007 by Eugene Y. Kim

The surest way to be late is to have plenty of time. (1)

I. Introduction

One of the unique aspects of litigating contract disputes before the Government Accountability Office (GAO) (2) is its ironclad adherence to the timeliness rules contained in its bid protest regulations. (3) Under the Competition in Contracting Act (CICA) of 1984, the GAO has 100 days to resolve bid protests. (4) This statutory requirement (known as the "100 Day Rule" (5)) has yielded a significant body of case law that upholds what has been referred to as the "golden rule" (6) of the GAO: "late is late!" (7)

The CICA's 100 Day Rule, coupled with the GAO's strict enforcement of this requirement, strongly promotes the timely disposition of bid protests. (8) Very often, significant litigation resources can be saved if the litigator is aware of the rules and applicable decisions of the Comptroller General regarding the timeliness of bid protests and related submissions. When presented with a motion to dismiss for lack of timeliness that is factually sufficient, the GAO will, in all likelihood, grant the request, thereby allowing the acquisition process to continue without the delay that would be required by litigation. (9)

The speedy and economical nature of litigation before the GAO stands in stark contrast to the "complex, slow, expensive, inefficient, processing-oriented system" (10) that is in place at the boards of contract appeals. The boards are tasked with reviewing contractor claims filed under the Contract Disputes Act (CDA) of 1978. (11) Although both the CICA and CDA provide for alternative, non-judicial forums that resolve disputes related to government procurements, the CDA lacked a key feature that the CICA possessed: a specific and strict deadline for the resolution of cases. (12) In the absence of a CICA-like legislative mandate to review and decide cases within an established timeframe, "[c]oncerns ... related to the (apparent, or at least perceived) decrease in speed of board resolution are not new." (13) This is particularly true in the case of the Armed Services Board of Contract Appeals (ASBCA), the largest of the boards of contract appeals. (14)

This article is premised upon the following thesis: the ASBCA should adopt a modified version of the 100 Day Rule in order to achieve the administrative efficiencies originally envisioned by the CDA. This thesis will be advanced from four vantage points. First, the GAO's bid protest rules on timeliness (as formulated in the CICA and implemented by the GAO's Bid Protest Regulations and decisions of the Comptroller General) will be examined. (15) Second, the CDA's provisions on timely contract appeals will be summarized in concert with the ASBCA's rules of procedure. Third, the case load statistics for the GAO and the ASBCA will be reviewed. Fourth and finally, a variant of the 100 Day Rule for the ASBCA will be proposed, so that the ASBCA may replicate the success the GAO enjoys in its expeditious and equitable processing of bid protests.

II. The Timeliness Provisions of the GAO's Bid Protest Regulations

Bid protests generally involve disputes concerning the award of a federal contract. (16) Under the CICA, the Comptroller General is authorized to review bid protests and issue recommendations on the merits. (17) The GAO's Bid Protest Regulations, codified in Title 4, Part 21 of the Code of Federal Regulations (C.F.R.), provide the regulatory foundation upon which the bid protest process is based. (18) Originally promulgated in 1985 (one year after the enactment of the CICA), the GAO's Bid Protest Regulations implement the requirements of the CICA and provide "the rules concerning where and how to file a protest, what to expect in the way of subsequent actions, and the time frames established for completion of those actions." (19) Parties to a bid protest are considered to have constructive knowledge of the contents of the GAO's Bid Protest Regulations because the regulations are published in the Federal Register. (20)

In addition to the GAO's Bid Protest Regulations, bid protest decisions have been issued by the Comptroller General that expressly recognize and rigidly uphold the timeliness requirements contained in these regulations. (21) The GAO recognizes relatively few exceptions to its timeliness rule, and these exceptions have high substantive thresholds, making their successful use a rare occurrence. (22) As a consequence, the GAO has been able to maintain the integrity of the bid protest process while still providing a forum for protesters where their grievances can be reviewed in a fair, economical, and speedy manner. (23)

A. The Competition in Contracting Act of 1984 and the 100 Day Rule

On 18 July 1984, President Ronald Reagan signed the CICA into law. (24) The CICA represented the first statutory codification of the GAO's bid protest review authority, a power it had been exercising since 1926. (25) Prior to the passage of the CICA, a major deficiency in the bid protest process was the amount of time that elapsed before the GAO was able to resolve a protest. (26) To solve this problem, and to "strengthen the bid protest function currently in operation" (27) at the GAO, the CICA amended Title 31 of the United States Code (31 U.S.C.) by adding Subchapter V, Procurement Protest System. (28) In addition to granting express (although not exclusive) authority to the Comptroller General to review bid protests, the CICA also provided the framework against which the GAO's Bid Protest Regulations are based. (29)