This message raises concerns in addition to those raised by Vern Edwards in his comment about the Department of Justice's competence in Federal contracting cases.

Vern,

Justice Department attorneys in general and Assistant United States Attorneys for the various districts in particular have a shallow understanding of Federal fiscal and procurement laws. However, I am much more concerned about agency attorneys who should be ensuring compliance with fiscal and procurement laws but instead think their role is to enable agency clients, military officers in particular, to do whatever they desire unfettered by fiscal and procurement laws.

I recognize that the practice of law is not an academic exercise. Agency attorneys, like their counterparts in private practice, have agency officials as clients who want assistance in achieving their objectives and want their positions zealously defended in litigation.
In my opinion, however, the reason that “garbage” is routinely filed before courts and boards is twofold. First, agency attorneys are rewarded for assisting clients in achieving client objectives in an expedited manner, and many agency attorneys have built their careers on a “can do” attitude that equates to nothing more than advancing disingenuous interpretations of Federal statutes and regulations, which thwart Congressional intent, defy common sense, and lack any semblance of integrity. These are the same sort of attorneys that advance disingenuous position in filing before courts and boards, they think their role is to defend their client’s positions even if they know (or should know) those positions are legally or morally wrong.

Second, garbage is routinely filed before courts and boards because agency attorneys are allowed to get away with it. Unlike their counterparts in the business sector, agency attorneys are not held personally accountable for disingenuous legal opinions, misleading (or false) statements of fact, and a lack of responsiveness. GAO’s Bid Protest forum is the worst offender in terms of a systematic failure to hold agency employees, including attorneys, accountable for their filings. Have you ever wondered why GAO’s protest sustainment percentage is so low?

The GAO Bid Protest regulations indicate that there is a prohibition against ex parte communications in the protest process. How many of you know that anytime a GAO attorney needs “additional information” to dismiss or deny protest allegations the standard practice is for the GAO attorney to telephone the agency attorney and discuss issues “off-the-record”, without permitting protester participation in the conversation?

Unfortunately, what happens is the GAO attorney explains to the agency attorney exactly what “additional information” is needed to dismiss or deny the protest allegations, and agency attorney will file a Supplement to the Agency Report doing his or her best to give the GAO attorney the additional information required to win. No attorney likes to lose. The agency attorney knows that the GAO attorney would not have telephoned for additional information if the protest allegations could be dismissed or denied outright, so the agency attorney recognizes that there is a chance that he or she might lose the protest depending on his or her ability to provide the additional information required to win.

In such situations, an agency attorney must decide how “zealously” he or she is willing to defend the agency’s actions. Does the agency attorney draw the line at filing a Supplement that is somewhat misleading (depending on how one interprets it), outright misleading, or patently false? I strongly suggest that those of you in the business sector should remember to raise an eyebrow anytime a Supplement to an agency report is filed under the signature of a different agency attorney than the one who filed the initial report (wink, wink). In my opinion, GAO’s standard practice of ex parte communications with agency attorneys to request additional information should cease, because such communications always work to the detriment of the protester and often result in agency attorneys taking inappropriate action.

Isn’t it ironic: “GAO will not permit protest allegations to be presented in a piecemeal manner”, but agency attorneys are given an incentive to defend agency actions in a piecemeal manner. Agency attorneys say as little as possible in the Agency Report, because they do not want to provide any new information that may result in a protester raising a new protest allegations, and agency attorneys know that GAO will give them an off-the-record telephone call if additional information is needed to dismiss or deny the protester’s allegations. More importantly, the telephone call from the GAO attorney always comes after the ten-calendar day period for filing Comments on the Agency Report has passed, so the protester is prevented from effectively raising new protest allegations based on the additional information received after Comments were due, because of the prohibition against the piecemeal presentation of protest allegations.

Since I am rambling, here are three more examples of the GAO Bid Protest forum’s failure to hold agencies (not to mention agency attorneys) accountable for their filings. First, GAO attorneys frequently dismiss protest allegations for being untimely, but GAO refuses to hold agencies to any timeliness standards. It is not uncommon for Agency Reports to be filed late, and agency attorneys know that GAO never penalizes any agency for a late filing. This is peculiar because 31 USC 3553(b)(2) states:

Except as provided in paragraph (3) of this subsection, a Federal agency receiving a notice of a protested procurement ... shall submit to the Comptroller General a complete report (including all relevant documents) on the protested procurement -

(A) within 30 days after the date of the agency's receipt of that notice;

(B) if the Comptroller General, upon a showing by the Federal agency, determines (and states the reasons in writing) that the specific circumstances of the protest require a longer period, within the longer period determined by the Comptroller General;

In violation of the plain language of the law, GAO accepts late Agency Reports without requiring any showing by the Federal agency of the specific circumstances of the protest that necessitated a period of longer than 30 calendar days to file the Agency Report and without GAO making a written determination in this regard. GAO has no authority to waive this statutory requirement. GAO should sustain protests where agency reports are not filed in a timely manner under the theory that the agency elected not to defend itself against the protest allegations.

Another example of a GAO’s refusal to require agency accountability is its acceptance of Statements of Facts contained in agency reports that are not signed by a Contracting Officer, even though GAO Bid Protest Regulation 21.3 (d) states: “The report shall include the contracting officer's statement of the relevant facts….” My experience has been that when a contracting officer with cognizance over a procurement subject to a protest is unwilling to sign his or her signature to the Statement of Facts in the Agency Report prepared by an agency attorney, it is because the contracting officer is not comfortable with the agency attorney’s “zealous” presentation of the facts.

I am familiar with a recent consolidated protest before GAO in which the protester argued in writing that the agency filings contained misleading and false statements and pointed-out that not one of the four contracting officers with cognizance over the protested procurements had signed the Statement of Facts in the consolidated report. The protester then went on to present agency records to prove that the Agency Report contained false and misleading statements of fact. However, even after the agency attorney was forced to concede that “errors” were made due to “miscommunications”, GAO refused to draw any negative inference from the fact that no agency contracting officer was willing to sign the Statement of Facts and a few of the disputed statements of facts had been conclusively proven to false. Why does GAO delude itself into believing that agency employees who have been accused in writing of violating procurement regulations or acting in an unreasonable manner are disinterested parties for purposes of defending their own actions in response to a GAO bid protest? There should be a requirement for all Statement of Facts presented before GAO to be signed by an agency official under penalty of perjury. I predict that such a requirement would drastically increase the percentage of protests that are sustained.

A third example of a GAO’s refusal to require agency accountability is its refusal to penalize an agency for failing to disclose all documents relevant to protest allegations along with the Agency Report. Agency attorneys should be reprimanded for not turning over all relevant documents in a timely manner and agencies should be required to reimburse protesters for forcing them to incur the attorney fees necessary to obtain documents that should have been filed accompanying the Agency Report. In many instances, agency attorneys only turn over the documents that are specifically referenced in the Agency Report and force the protester to fight to obtain any other document.

By the way, my biggest gripe with the GAO Bid Protest forum is that on past occasions GAO attorneys have denied protests after concluding that the interpretation of a Federal Acquisition Regulation (FAR) provision advanced by an agency attorney is “reasonable”, even though that interpretation happens to be inconsistent with the Federal statute that the FAR provision was supposed to implement. Vern, I have observed that you are quick to criticize DAU professors who incorrectly answers the questions posed to them, but you are conspicuously silent when GAO attorneys accept an agency interpretation of a FAR provision that is inconsistent with the Federal statute that the FAR provisions was supposed to implement. Is there a reason for this other than economic self-interest?

Ned

By Ned Kelly on Friday, September 27, 2002 - 02:04 pm: