Does the Court of Federal Claims Give Alliant 2 Protestors More Hope Than GAO?Media Coverage
The battle for the next great IT services governmentwide acquisition contract took a bit of an unusual turn in early December when Obxtek Inc. filed a protest of the Alliant 2 awards in the Court of Federal Claims.
David Yang, a partner with Blank Rome LLP, said the court forces the agency defendant to produce more details about their decision.
“The biggest pro at the court is that protesters get the full record as a matter of right, whereas at GAO, many agencies will only produce those portions of the record that relate to the allegations in the protest,” Yang said in an email to Federal News Radio. “The piecemeal approach at GAO handicaps protesters from reviewing the full record and constrains their ability to make full arguments or to raise supplemental arguments — which is why agencies use this tactic. The automatic production of the full record at the court bypasses this waste and allows the parties to focus on the merits instead of fighting over document productions.”
Neither Yang nor Kinosky said vendors are more likely to win in the Court of Federal Claims versus GAO.
While Kinosky said companies have a higher win rate at GAO, both venues do not notably differ in their interpretations of procurement law.
Yang added vendors must climb the same large hill before both GAO and CFC as long as the agency’s award decision is reasonable and supported by the record.
“There is not a clear substantive difference in standards between the two forums. However, in closer cases, our experience has been that the court may more likely side with the protester whereas GAO is more likely to defer to the agency,” he said. “As for fairness, both forums do their best, but GAO is significantly more taxed in case load than the court, so GAO perhaps has less time to dig into the record or consider arguments as fully as the court. This doesn’t mean that GAO takes short cuts but GAO’s reasoning/analysis isn’t always as sharp as the court, as demonstrated by the level of detail of the decisions issued by GAO and those issued by the court.”
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"Does the Court of Federal Claims Give Alliant 2 Protestors More Hope Than GAO?," by Jason Miller was published in Federal News Radio on January 8, 2018.