In a recent bid protest decision, the Government Accountability Office (GAO) declined to review the General Services Administration’s (GSA) compliance with an executive order that the protester argued prohibited GSA from awarding the contract. Although GAO routinely reviews the implementation of various procurement-related executive orders (for example, policies related to wage determinations, utilization of small business, and labor rights clauses), this case represents the GAO’s first clear statement regarding the general application of executive policies in bid protest proceedings. What impact will this have on protestors?
In 901 North Fifth Street, LLC, the protester argued that GSA was prohibited from relocating an EPA facility to suburban Kansas City by the terms of Executive Order 12072, which requires agencies to comply with procedures to “strengthen the nation’s cities” and “conserve existing urban resources.” B-404997; B-404997.2, July 22, 2011. Rather than reviewing GSA’s compliance with Executive Order 12072, the GAO held that it does not “review allegations of an agency’s failure to comply with Executive Branch policies under [GAO] Procedures, as a general matter.” The exception to this rule is when such policies are “contrary to applicable to procurement statutes and regulations” or where the “provisions of the order have been expressly incorporated as requirements by the terms of a solicitation.” Although, arguably, Executive Order 12072 had a direct impact on the procurement process in 901 North Fifth Street, the GAO summarily dismissed the protester’s argument, stating that the provisions of Executive Order 12072 were not “expressly incorporated as requirements by the terms of the solicitation.”
GAO’s decision clarifies and narrows the scope of its review of executive policies that are directly implicated by an agency’s solicitation. This stance potentially allows agencies to argue in future bid protests that such “policy” decisions – that have only a tangential relationship to the procurement process – are outside the GAO’s jurisdiction. In such cases, an aggrieved contractor should consider seeking review by the U.S. Court of Federal Claims, which has taken a more expansive view of enforcing executive orders that are issued pursuant to a statutory authority. See, e.g., Knowledge Connections, Inc. v. United States, 79 Fed. Cl. 750, 754 (2007). However, potential protesters should be aware that even the Court has refused to review executive orders that function solely as “managerial tools for the executive branch.”