Bill creates new venue for protests

Congress this month passed an amended version of the Administrative Dispute Resolution Act of 1996 (H.R. 4194) that will allow vendors to take post-award protests to the U.S. Court of Federal Claims in addition to established protest venues such as the district courts or the General Accounting Office.

The act which goes into effect in January also directs GAO to undertake a study in 1999 to determine if district courts and the claims court should continue to have concurrent jurisdiction over post-award pro-tests.

The act would terminate the jurisdiction of the district courts in 2001 unless Congress extends it before that deadline.

The amendment drew bipartisan support among the few remaining legislators on Capitol Hill early this month as well as favorable reaction among procurement attorneys and sources in the Clinton administration.

Rep. Carolyn Maloney (D-N.Y.) a supporter of continued jurisdiction of the district courts said she supported the amendment's provision to give protesters "a local forum to appeal decisions on government contracts" as well as an additional venue at the claims court.

"This makes sense " Maloney said in a statement early this month. "It gives our constituents the benefit of either forum for a full evidentiary hearing and allows a practical test of whether both forums are needed."

Steven Kelman administrator for federal procurement policy at the Office of Management and Budget said he welcomed the decision to give the claims court jurisdiction over these protests. He said his office has opposed the district courts' jurisdiction because it offered protesters "home court advantage."

Kelman added that the decision to allow district courts to continue hearing post-award protests was "a little bit of a crap shoot" because it left open the possibility that GAO and Congress may ultimately designate district courts as the preferred venue.

But he said this month's amendment will improve the current situation in which vendors can take their protests only to GAO or district courts.

Procurement attorneys said they would most likely take advantage of the claims court's new jurisdiction. Alex Tomaszczuk chairman of the government practice group at the law firm of Shaw Pittman Potts and Trowbridge Washington D.C. called the amendment "quite significant" and said protesters are more likely to get a fair shake at the claims court than at GAO.

"In the more complicated higher dollar volume procurements I think you will see more protests filed at the Court of Federal Claims " Tomaszczuk said. "The claims court has the authority to push people to do things that GAO can't. And the court does have experience with pre-award protests."

Observers said they expected President Clinton to sign the act into law late last week.


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