Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations

Volume 3 of 3 | January 2019

Streamlining and Improving Compliance Volume 3

Recommendation 68: Limit the jurisdiction of GAO and COFC to only those 

protests of procurements with a value that exceeds, or are expected to 

exceed, $75,000. 

Problem

Proponents of the U.S. bid protest model have defended the system as necessary for ensuring fairness, 

accountability, and transparency in government procurement. They point to the relatively small 

number of protests that are filed each year and the relative speed with which the vast majority are 

adjudicated, to argue that the existing process is not overly burdensome. Even the limited number of 

protests filed each year, however, cost taxpayers, DoD, and contractors who file protests substantial

amounts of time and resources and more importantly slow delivery of technology and lethality to the 

warfighter. When costly protests are filed in conjunction with relatively small-value contract awards, it 

brings into question whether the value of the transparency and accountability is worth it.

Background

RAND found in its analysis of DoD protests filed at GAO and COFC that a nontrivial number of 

protests filed are related to contract actions valued at less than $100,000.1 A little more than 10 percent 

of the procurements that were subject to a protest at GAO were valued at less than $100,000 and 

approximately 4 percent of the procurements subject to protest at COFC were valued at less than 

$100,000.2 RAND questions “whether the costs to the government to adjudicate these protests [at GAO 

and COFC] exceeds the value of the procurement themselves and thus are not cost-effective.”3

RAND’s report does not make many substantive recommendations, but one recommendation is to 

“consider implementing an expeditious process for adjudicating bid protests of procurements valued 

under $0.1 Million.”4 The recommendation suggests potentially having COFC rule from the bench or 

GAO require alternative dispute resolution (ADR) for all smaller-value protests.5 RAND suggests 

restricting such smaller-value protests to the agency level as another potential option but describes it as 

“perhaps less desirable...from a fairness perspective.”6 Ultimately RAND’s recommendation is to 

“come up with a quick way to resolve these cases commensurate with their value while preserving the 

right to an independent protest.”7

As discussed above, the United States is signatory to a number of multilateral and bilateral trade 

agreements that require the signatories to maintain certain public procurement processes, including 

a protest/challenge process. The WTO’s 1994 GPArequires parties to provide a process for suppliers 

 

1 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 59, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 2 Ibid, 52.

3 Ibid, 71.

4 Ibid.

5 Ibid.

6 Ibid.

7 Ibid, xviii.
Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations

Volume 3 of 3 | January 2019

Streamlining and Improving Compliance Volume 3

who have, or have had, an interest in a procurement to challenge alleged breaches of the Agreement. 8

The revised GPA has a similar requirement.9 The United States is among 47 nations that are parties to 

the revised GPA. In addition, many of the multiple bilateral free-trade agreements to which the United 

States is a party contain similar provisions. These provisions require a challenge process, but all have 

applicability thresholds for which the requirements of the agreement do not apply to procurements 

valued below that threshold.

10 FAR 25.204 contains a table depicting all of the thresholds associated 

with each of the free trade agreements. A number of agreements that require a protest process apply to 

all supply and service contracts valued above $80,317.11 This threshold is the lowest above which the 

United States must provide a process for challenging decisions of procurement officials. 

Discussion

Agencies face protests of procurements at GAO that are at times valued just over the micro-purchase 

threshold and must litigate at COFC procurements valued well below $100,000. One recent example of 

a GAO protest was based on an $8,000 contract award. It is difficult to understand how the value, in 

terms of transparency, outweighs the cost of resolving them. Congress, in Section 822(d) of the FY 2019 

NDAA attempted to address this problem by directing the Secretary of Defense to develop a policy for 

expeditiously resolving protests related to contracts valued less than $100,000, but this policy could 

only affect agency-level protests. Legislative changes to GAO and COFC’s jurisdiction are necessary to 

ensure this policy is effective.

The first two potential changes proposed by RAND, to mandate ADR at GAO and for COFC to issue 

bench rulings for protests of small-value contracts would be challenging to implement, would still 

sacrifice transparency if written opinions were not issued, and could still be very costly for all parties. 

RAND’s final suggestion, to restrict protests below a certain dollar threshold to the agency level, could 

be implemented immediately, would enable the policy resulting from Section 822(d) to be effective, and 

 

8 Agreement on Government Procurement, World Trade Organization, as approved by Congress in the Uruguay Round Agreements Act 

(Pub. L. No. 103-465). Agreement on Government Procurement, Article XX: Challenge Procedures, paragraph 2, 26, World Trade 

Organization (1994), accessed November 27, 2018, https://www.wto.org/english/docs_e/legal_e/gpr-94_e.pdf. 9 See Revised Agreement on Government Procurement, Article XVIII: Domestic Review Procedures, paragraph 1, 23, World Trade 

Organization, accessed November 27, 2018, https://www.wto.org/english/docs_e/legal_e/rev-gpr-94_01_e.pdf. 10 See for example: United States-Australia Free Trade Agreement, as approved by Congress in the United States-Australia Free Trade 

Agreement Implementation Act (Pub. L. No. 108-286) (19 U.S.C. 3805 note); United States-Bahrain Free Trade Agreement, as approved by 

Congress in the United States-Bahrain Free Trade Agreement Implementation Act (Pub. L. No. 109-169) (19 U.S.C. 3805 note); Dominican 

Republic-Central America-United States Free Trade Agreement, as approved by Congress in the Dominican Republic-Central AmericaUnited States Free Trade Agreement Implementation Act (Pub. L. No. 109-53) (19 U.S.C. 4001 note); United States-Chile Free Trade 

Agreement, as approved by Congress in the United States-Chile Free Trade Agreement Implementation Act of 1993 (Pub. L. No. 108-77); 

United States–Colombia Trade Promotion Agreement Implementation Act (Pub. L. No. 112-42) (19 U.S.C. 3805 note); U.S.-Israel Free 

Trade Area Agreement, as approved by Congress in the United States-Israel Free Trade Area Implementation Act of 1985 (19 U.S.C. 2112

note); United States–Korea Free Trade Agreement Implementation Act (Pub. L. No. 112-41) (19 U.S.C. 3805); United States-Morocco Free 

Trade Agreement, as approved by Congress in the United States-Morocco Free Trade Agreement Implementation Act (Pub. L. No. 108-

302) (19 U.S.C. 3805 note); United States-Oman Free Trade Agreement, as approved by Congress in the United States-Oman Free Trade 

Agreement Implementation Act (Pub. L. No. 109-283) (19 U.S.C. 3805 note); United States-Peru Trade Promotion Agreement, as 

approved by Congress in the United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. No. 110-138) (19 U.S.C. 3805

note); United States-Panama Trade Promotion Agreement Implementation Act (Pub. L. No. 112-43) (19 U.S.C. 3805 note); and United 

States-Singapore Free Trade Agreement, as approved by Congress in the United States-Singapore Free Trade Agreement Implementation 

Act (Pub. L. No. 108-78) (19 U.S.C. 3805 note). 11 See FAR 25.402.
Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations

Volume 3 of 3 | January 2019

Streamlining and Improving Compliance Volume 3

would make it less likely that the agencies would spend more taxpayer dollars processing and 

defending a protest than a procurement is worth. 

Conclusions

Congress should limit the jurisdiction of GAO and COFC to protests of DoD procurements valued 

above $75,000 or expected to be valued above $75,000. This threshold is consistent with the Section 809 

Panel’s recommendation for raising the public advertising threshold discussed in the Volume 2 Report, 

and ensures that the U.S. protest process remains consistent with existing free trade agreement 

obligations.12 This threshold is below the value RAND used for its analysis and will likely effect an 

even smaller percentage of protests than the percentage identified by RAND; however, it would 

prevent future protests of $8,000 procurements at GAO or COFC which consume time, resources, and 

taxpayer dollars that could be reinvested in delivering capability to warfighters. 

Implementation

Legislative Branch

§ Amend 31 U.S.C. § 3552 and 28 U.S.C. § 1491 to limit the jurisdiction of GAO and COFC to postaward protests of procurements valued above $75,000 and preaward protests of procurements 

with an expected value above $75,000.

Executive Branch

§ There are no regulatory changes required for this recommendation.

Implications for Other Agencies

§ This change only applies to DoD but could be expanded to apply to all federal government 

agencies.

 

12 Section 809 Panel, Report of the Advisory Panel on Streamlining and Codifying Acquisition Regulations: Volume 2 of 3, Section 3: 

Simplified Commercial Source Selection, 107-109 (2018).The Panel is not commenting on whether an agency-level protest meets the 

requirements found in the various free trade agreements, though it appears that an agency-level protest would most likely satisfy those 

requirements.