“As detailed as solicitations and procurement rules might be, protests are a regular part of the federal contracting scene. Protesters can file with the Government Accountability Office, or with the U.S. Court of Federal Claims — and get wildly different results. Federal Drive with Tom Temin got analysis of one such case with Smith Pachter McWhorter attorney Joseph Petrillo…”
“Tom Temin: …And the question really is, why does GAO look at it in one way, and the courts look at it in another way? And what does this say about the whole protest process?
Joseph Petrillo: Well, the court looked at, as I’ve said, at the record, and didn’t find an adequate explanation in the evaluation record. So I think there are two things different here. First of all, GAO is looking at the solicitation and trying to see whether it’s specifically and explicitly in GAO’s view, keeps the agency from doing what it did. It looks really at what could have happened as well as what apparently did happen. The courts looking at evaluation record, what did the agency say it did? And it’s taking the facts in much more detail, I think, then GAO did. And when it drills down into the facts and defines discrepancies, it wants to find an explanation of the record for what’s happened. And that didn’t happen here.
Tom Temin: Well, is this that GAO and the courts are consistent in the way they look at things, or could it have just been that particular judge, and that particular GAO attorney, that is to say, do you know what you’re going to get consistently, depending on where you file?
Joseph Petrillo: That’s a very good point. At the court, each individual judge looks at things in their own particular way. So the judge is going to differ, because they do differ from person to person. At GAO, there is perhaps more unity in terms of the result, because they have an organizational structure in which the attorney who’s interfaces with the parties during the protest has a reviewer, and that goes up through a review chain before the protest is issued. So there’s probably more uniformity in the GAO approach. But still, the person who’s on the ground looking at the actual protest issues, there’s some variation there as well. So I have to say that as much as you’d like to think that you get consistent results, that’s probably not the case…” Read the full interview here.
Source: A look into the world of federal contracting protests – By Tom Temin, August 5, 2021. Federal News Network.
