Repeal of the Brooks Act: an answer to everyone's prayers?

The DOD authorization bill for fiscal 1996 repeals the Brooks Act and, without much fanfare, changes the way every information technology federal contractor—and their lawyers—will do business with the government.

The most significant impact of the revocation of the Brooks Act is the elimination of the protest jurisdiction of the General Services Administration's Board of Contract Appeals, the preferred forum for the resolution of protests in procurements for ADP equipment and resources. After Aug. 10, all ADP protests will have to be filed at the General Accounting Office. During the debate on the repeal of the Brooks Act, conventional wisdom had it that the only proponents of GSBCA's protest jurisdiction were government contracts lawyers, seeking to profit from that forum's more expensive procedures. The truth is, however, that the effect of the eradication of GSBCA's protest jurisdiction will not be limited to lawyers. Contractors are likely to experience a lack of meaningful relief, delay and limited access to information and increased barriers to entry to the federal marketplace as a result of the new regime.

In every completed procurement there is a contract awardee and a disappointed offeror or bidder. While many disappointed offerors never protest, for most contractors there will come a time when they believe they have been wronged by the procurement process. It has been my experience that contract awardees who have participated in defending an agency against a GSBCA protest overrate the effectiveness of the GSBCA protest mechanism. In this forum, only one out of three protests is granted. Furthermore, given the expense of GSBCA litigation, even successful protesters feel they have paid dearly for the simple right of being treated fairly.

The elimination of GSBCA's protest jurisdiction will only exacerbate this feeling of disenchantment. Statistics predict a GAO protest success rate of one in five to barely one in 10. More often than not, these are Pyrrhic victories. At GSBCA a contract award will be suspended during the protest unless the government can demonstrate to GSBCA the existence of "urgent and compelling circumstances" warranting proceeding with contract performance. At GAO, agencies may themselves determine if suspension is necessary using a more lenient standard. If the contract awardee is permitted to perform during the protest, GAO will not, theoretically, take into account the cost to the government of terminating the protested contract in fashioning a remedy. However, because GAO only makes "recommendations" in protests, which must be voluntarily implemented by the agency, the termination costs to be incurred by an agency as a result of a successful protest are a hard fact to ignore. Even if the prevailing protester succeeds in securing another opportunity at the contract award, prevailing protesters must overcome the disfavor engendered by the protester's filing the protest in the first place. The relief available to a successful protester at GAO, therefore, will rarely be the relief sought—the contract award.

Delay

Referred to as the "rocket docket" of federal procurement, GSBCA is known for its whirlwind resolution of complex protests. By statute, GSBCA is required to resolve protests within 65 calendar days.

GAO, on the other hand, was only required to resolve protests within 125 calendar days, a period that has been shortened to 100 days. GAO attorneys, however, have a bit of flexibility in this regard. If new issues arise in one of the parties' submissions to GAO, GAO can classify the submission as a new protest, triggering a new 100-day decision period, and may consolidate the new and old protests together under the revised schedule. While this option is not the norm, it certainly is not uncommon, and is likely to be less so now. With 2,334 protests filed at GAO in fiscal 1995, GAO is operating above its capacity. Add to that number the 178 ADP protests filed at GSBCA in fiscal 1995, and a pattern of delay in resolving protests appears inevitable. As delay increases, so does the cost of terminating the protested contract, resulting in a decreased chance of meaningful relief.

Access to Information

GSBCA operates like a federal court, with its own clerk's office. Unless filed under protective order, protests and other documents filed with the clerk are considered public documents and are available to the public for review.

The GAO process is more clandestine. The individual GAO attorneys assigned to the protest control the file and, more often than not, are reluctant to provide information regarding the protest to anyone other than those officially party to the protest. Accordingly, the flow of information taken for granted by so many in the technology industry will be drastically curtailed.

Barriers to Entry

Contrary to popular belief, protests are not the exclusive weapons of large contractors seeking to expand their piece of the federal pie. Indeed, studies have shown that the majority of protests are filed by small businesses. Small technology businesses frequently protest because their entire business may depend on the protested contract award, whereas the missed contract opportunity only affects larger federal contractors at the margin. GAO is not a viable protest forum for disappointed small businesses.

While the up-front costs of filing a GAO protest are less than those at GSBCA because of the delay and small chance of receiving an award, a protest is rarely a smart business decision for contractors with limited resources.

Advocates of the recent bill argue that the savings associated with eliminating GSBCA will more than outweigh the potential costs cited above. On the surface, the bill seems to be a tremendous victory for the government, which will now supposedly be able to act like a commercial buyer, purchasing without fear of recrimination. Agencies, however, are not guaranteed immunity from intrusive litigation as a result of the elimination of GSBCA's protest jurisdiction. For those contractors that can afford it, requests for injunctive relief in federal courts will become standard protest practice, which makes a GSBCA protest look like a cakewalk. Thus, lawyers and federal contractors aren't the only ones that will be affected by the repeal of the Brooks Act.

The government ought to take heed of the old admonition that "when the gods want to punish you, they answer your prayers."

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Hewitt is an attorney with Shaw, Pittman, Potts & Trowbridge in McLean, Va., specializing in protests and small/minority business contracting. She can be reached at devon_hewitt@shawpittman.

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