A Call for Public Access to Bid Protest Pleadings

133
Valery Evlakhov | Shutterstock

A Pub K Editorial

U.S. courts presume that judicial documents are open to the public and recognize a right to inspect and copy court records.[1] As government contract practitioners know, however, the right to public access in bid protests at the Court of Federal Claims (COFC) and GAO is significantly limited. Protests are typically filed under seal and disclosure of documents is circumscribed by a protective order. But at least the COFC allows limited public access to redacted judicial filings. In GAO protests, the public basically gets no access to pleadings, which is needlessly restrictive. At a minimum, GAO should follow the COFC’s slightly more liberal approach.

Public Access to COFC Protests

Like other federal courts, the COFC publicly dockets protest filings on the Public Access to Court Electronic Records (PACER) system. However, a protest complaint is usually accompanied by a request for protective order, which, if granted, means the pleadings will be sealed. COFC rules require pleadings under seal to be accompanied by a proposed redacted version that can be available to the public.[2]  Litigants are rarely assiduous in submitting redacted filings, but when they do, the public can access them through PACER. Even redacted filings can give the public a sense of the issues involved and the litigants’ positions in a protest. Moreover, because redactions are posted while the protest is pending, interested parties—like other offerors—can review the arguments and decide whether to seek to intervene or file their own protests.

Public Access at GAO

Compared to the COFC, GAO is an information abyss. In 2018, GAO implemented its Electronic Protest Docket System (EPDS), which, like PACER, provides a list of protest filings. Unlike PACER, however, the public cannot review even redacted copies of these filings. Indeed, when GAO sought comments on the proposed rule to implement the EPDS, one commentator requested that redacted versions of protests be posted on EPDS so they would be available to the public. GAO simply stated that “EPDS does not allow access to documents, redacted or otherwise, to non-parties.”[3]

Accessing protest documents from GAO is not impossible but is burdensome. GAO makes protest documents available only “after issuing a decision on the protest.”[4] At that point, the public can obtain redacted documents through a procedure that “follows the spirit” of the Freedom of Information Act.[5] A member of the public must contact GAO’s Chief Quality Officer, who is supposed to acknowledge or honor the request within 20 days of receipt.[6] In short, there is no meaningful right to public access at GAO while the proceeding is ongoing.

The Problems with GAO’s Restrictive Policy

GAO’s closed-book approach is inimical to the right of public access. In deciding bid protests, GAO acts in a judicial capacity. Thus, the interests served by public access to judicial documents apply to bid protests filed at GAO. Access to judicial records allows the public to monitor judicial proceedings, which limits the abuse of judicial power and promotes public confidence in the proceedings.[7] By only allowing access to protest documents after a decision—and then only after completion of a burdensome document request process—GAO prevents public monitoring of the protest process.

This interference with public monitoring has a uniquely pernicious dimension in GAO protests. GAO often asks other agencies—e.g., SBA, Department of Veterans Affairs—for input on protest issues. These agencies provide GAO with a written opinion that GAO relies on in reaching a decision. These opinions are the agencies’ official position on important legal issues. The agencies’ broad position may be discernable from the GAO decision, but because GAO doesn’t allow access to protest documents, the substance of the agencies’ reasoning remains a secret. Needless to say, the public is not served when an official agency position is obscured.

Moreover, for those who actually want to monitor protest proceedings, GAO’s public access policy is impractical. Suppose you’re an offeror planning to submit a proposal. Another offeror, however, has filed a pre-award protest, challenging the terms of the solicitation. As a prospective offeror, you would undoubtedly be interested in learning something about that protest. Perhaps you also want to chime in and make your own separate argument as to why the solicitation is defective. Or maybe the challenged requirement is the very factor that gives you a leg up on the competition. You would certainly want to keep tabs on a protest challenging that requirement.

But under GAO’s policies, it’s impossible to find out what’s going on in the proceedings. This is particularly irksome because protests challenging a solicitation will not typically implicate proprietary information and thus do not require redactions. Yet even an offeror with a direct economic interest in a pre-award protest will be out of luck getting information. The same problems arise in post-award protests. If you’re an unsuccessful offeror and another offeror has filed a GAO protest challenging the award, you must also decide whether to protest. It would be extraordinarily helpful to see what arguments the other protester has asserted. Have they objected to the same portions of the evaluation you want to challenge? Are there distinct arguments you want to make yourself? If GAO made protest filings available, other offerors could get a sense of the issues and make an informed choice about whether to protest. Stranded in ignorance, many offerors have to err on the side of filing a kitchen-sink protest, which wastes the offeror’s and GAO’s time and resources.

Finally, limiting access to pleadings at GAO keeps the public from playing an important role in checking the quality of GAO’s decision-making. Experienced bid protest practitioners often lament that GAO decisions regularly overlook crucial facts and legal arguments, defer too much to agencies, or are inconsistent with prior GAO case law without adequate reasoning. Without the benefits of the pleadings, the public cannot decide for itself whether GAO is providing quality government service.

GAO Should Adopt the COFC’s Public Access Policy

GAO’s prohibitive public access policy is a vestige of the pre-internet era. As a congressional agency, GAO doesn’t have a history of making its files and deliberations available. GAO has never had a reading room where the public could review case files. But the transition to electronic docketing systems has allowed the government to make more documents available and shifted the public’s expectation on availability.

By implementing the EPDS, GAO now has an electronic docket like the COFC’s PACER system. Accordingly, GAO should adopt the same public access policy as the COFC. Indeed, GAO already requires parties to submit redacted copies of all protest filings. It should be easy for GAO to post those redacted documents on the EPDS.

Conclusion

In sum, there’s only a minimal right to public access in protests filed at the COFC and no meaningful, timely right at GAO. GAO should at least adopt COFC’s public access policy. This would allow the public to monitor protests, help offerors make informed litigation decisions, and ultimately bolster the integrity of the protest system. These benefits certainly outweigh whatever reason GAO has for clinging to its anachronistic policy of opacity. As the U.S. Supreme Court noted, “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”[8]

[1] Nixon v. Warner Commc’ns, 435 U.S. 589, 597 (1978); see also In re Violation of Rule 28(D), 635 F.3d 1352 (Fed. Cir. 2011) (noting common law right of access to court filings).

[2] R. Ct. Fed. Cl. App. C, Rule 4 (Procedure in Procurement Protest Cases).

[3] Government Accountability Office, Administrative and Procedure, Bid Protest Regulations, Government Contracts, 83 Fed. Reg. 13817 (Apr. 2, 2018) (to be codified at 4 C.F.R. pt. 21).

[4] Bid Protest Regulations, 4 C.F.R. § 21.1(g).

[5] Public Availability of Government Accountability Office Records, 4 C.F.R. § 81.1(a).

[6] 4 C.F.R. § 81.4(a).

[7] Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 592, 596-97 (1980).

[8] Id. at 572