During a House Oversight Committee hearing in July, Rep. Brandon Gill (R-TX) asked Government Accountability Office Managing Associate General Counsel for Procurement Law Ken Patton about bid protest cases.
00:00Thank you very much. We now move to the distinguished gentleman from Texas, the gentleman Mr. Gills, recognized for five minutes.
00:07Thank you, Mr. Chairman, and thank you to the witnesses for being here and taking the time.
00:13Mr. Patton, I'd like to start with a few questions.
00:17For you, my understanding is that GAO serves as an arbiter of bid protest challenges, but the decisions are non-binding. Is that correct?
00:26Yes, sir. That is correct.
00:27What's the rationale for contractors to use the GAO as a venue for bid protests, given that they're non-binding?
00:36One of the benefits of the GAO bid protest system is that if you file within certain time frames, you get what's called an automatic stay of performance,
00:45meaning that the agency can't move forward with awarding or performing the contract.
00:49That allows GAO time to administer and resolve the protest.
00:53That's one of the chief benefits of filing at GAO.
00:55Got it. Do you think the GAO would like those to be binding, those decisions?
01:01I think GAO recognizes that there are some true separation of powers issues.
01:06Since GAO is a legislative branch agency, we don't want to be perceived as overstepping our lane.
01:13Right. Do you think it would change the landscape if they were?
01:15I think there would be significant questions that would need to be resolved if GAO were given authority or asked to do things that might be perceived to be an executive function.
01:26Got it.
01:27And can you provide a couple of examples of some more egregious examples of companies bid protesting?
01:34In what context? We have protests where we have sustained protests.
01:40We have protests where we have denied.
01:42There have been some instances, as I think alluded to before, we did have a vexious protester who filed numerous what we might consider meritless protests.
01:52And we barred that individual company from filing protests at GAO.
01:56Do you see that happen often?
01:58Not at all.
01:59Actually, that was an anomaly.
02:02And since 2018, when we have implemented our electronic protest docketing system with an intended filing fee,
02:08we've seen a drop in protests and a drop in repeat filers.
02:12And that's what I was about to ask you.
02:14It seems like the current process has the potential to create delays because contractors would file with the GAO first,
02:20withdraw their case when they anticipate losing,
02:24and then subsequently initiate a new case with the Court of Federal Claims.
02:29And you're saying that doesn't happen often, is that correct?
02:32Don't have the data to answer that question.
02:34But what I can say is the Court of Federal Claims has around 200 or so odd cases.
02:39So if that is happening, it's happening in a very, very small number of cases.
02:43Got it.
02:43Do you think that this process should be reformed in any way?
02:47I think that if there are legitimate questions that people have about its efficacy,
02:52those ought to be explored.
02:54And to the extent that there are concerns, they should be addressed.
02:57But I do think that we do need the data to support whatever concerns might be identified.
03:03Based on your experience, what changes would you like to see?
03:06Right now, we do think that the system is operating as intended.
03:11I think that it's, we have not seen any need to initiate any reforms.
03:17That doesn't mean that we can't do so if some are in fact identified.
03:21Got it.
03:22Thank you, Mr. Patton.
03:23And I yield the remainder of my time to the chairman.
03:27Thank you very much.
03:29The gentleman now has yielded back his time.
03:32I would like to amplify, if I can, in the remaining minute and 30 seconds, the admiration that I have for each of you,
03:42all three of you, to come and engage this subcommittee.
03:46There are always public comments.
03:49There are always public perceptions about bids, processes, fairness.
03:54The process is involved in that.
03:58And I have found that in speaking to each of you three who are deeply involved in this process,
04:07that you are providing this subcommittee with your feedback.
04:11Notwithstanding, there are members who have offered some bit of a challenge to that
04:16and sustained not only where we are but what we're attempting to do.
04:22I will speak to it on my five minutes, but I wanted to use these 42 seconds remaining
04:28to let you know that I see little difference between you when you all talk about the system
04:37except to say that you want it to remain fair.
04:41You want it to remain something that is a part of a public discussion.
04:47You are open not just to feedback, but that you find that the openness by each of the agencies
04:55as they go about their business is properly performed by GAO.
05:01The GAO has a part in that process and that outside counsel or these companies have knowledge.
05:08And I want to thank you, and I think that Mr. Gill started to get at that by asking the question,
05:16well, do you need any changes?
05:18And I think that what really happened is Mr. Patton clearly said there are perceptions,
05:26there are ideas out there, but in their review, please make sure you address those before you go change anything.
05:32And I want to thank the distinguished gentleman from Texas.
05:36We now yield back the time and move to the gentlewoman from Washington, D.C.
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