Government Contracts Monitor

Short Take: Refusing to Implement GAO’s Ruling – Is It Possible?

October 6, 2015

Caddell Construction Company filed a successful protest with the General Accountability Office (GAO) but then had to challenge the agency’s refusal to follow GAO’s ruling in the Court of Federal Claims (COFC). The Court recognized “the long-standing expertise of GAO in the bid protest arena” and that it generally accords GAO’s decisions “due regard”, but reminded us that “GAO recommendations do not bind agencies”. The Court went on to explain how here the agency (the Department of State) “had ample reason … not to follow GAO’s recommendation”.

According to the Court, there is a conflict between the two bid protest fora – GAO and the COFC – regarding the statutory interpretation of the Omnibus Diplomatic Antiterrorism and Security Act of 1986. Thus, “the agency faced a dilemma – no matter which forum it followed, it would be departing from the other’s ruling.”

In departing from GAO’s ruling here, the agency relied on a COFC decision regarding the Act. Not surprisingly, the Court found the agency’s interpretation reasonable and “legally correct”. Caddell Construction Company v. U. S. and Pernix Group, Inc., No. 15-645C, October 2, 2015.

Attorneys

Lindsay Simmons