Thursday, November 29, 2012


In 1996, the Government Accountability Office (GAO), began using a type of alternative dispute resolution (ADR) known as "outcome prediction".  It usually takes place after all the parties have thoroughly briefed the issues raised in the original and supplemental protests, an evidentiary hearing has taken place (which is fairly rare), and all that is left is the GAO decision.  It typically involves a conference call convened by the GAO attorney handling the case.  The purpose is to explain to the parties the likely success or failure of their legal arguments. Although the prediction is not a formal decision, it is vetted up the ladder of authority within GAO before announced to the parties.

The willingness to provide an outcome prediction is generally an indication that the protest is viewed as meritorious such that a reasonable agency inquiry into the protest would show facts disclosing the protester's arguments had merit.  GAO may well tell the parties that the protest will be sustained if the decision actually is written up.  The agency then is left with the option of allowing GAO to issue its decision or the agency may decide to take corrective action.  If the agency concedes and agrees to take corrective action, the case is dismissed by GAO as academic.  In the past, this often left the protester with no real remedy since the corrective action might or might not actually be taken and, of course, result in a further protest.  But GAO is making things better by being more specific on its outcome prediction recommendation.

The new GAO best practice is to make it clear what corrective action it is recommending.  The protester, meanwhile, is still left out in the cold with no control over whether the agency decides to take corrective action and the form it will take.  GAO correctly is not only making its recommendation clear, it also recites the action the agency agrees to take in its dismissal letter.  If GAO is clear in its recommendation and reduces it to writing, there now is a chance the agency will bind itself to actually taking the corrective action recommended.

In the end, however, the protester prevailing in an outcome prediction lacks assurance that the challenged procurement violations will not be repeated.  Hence, protests following corrective action are not uncommon.  But GAO has paved the way to meaningful corrective action by making its outcome predictions contain recommendations that instruct the agency on the proper corrective action.

The problem of an agency announcing corrective action before outcome prediction remains.  If any agency concedes before outcome prediction it can avoid GAO's recommendation and take the action it unilaterally decides to take.  Although this approach is laudable in some cases, it can also lead to mischief and leave the protester without any control over its protest.  The protester can, however, protest anew if the corrective action is flawed.

All in all, we applaud GAO's efforts to dispose of cases by outcome prediction. Although most protesters would prefer GAO issue a written decision sustaining their protests, if GAO is specific enough in its outcome prediction and the agency agrees to do what GAO recommends, the result will be the same.       

1 comment:

  1. Perhaps a better way to conclude outcome prediction would be a requirement that the parties enter into a settlement agreement spelling out the corrective action in return for which the protester would withdraw the protest. The protester would have the option to enter into the agreement or let the protest proceed to decision. The agency would not have the unilateral right to force GAO to dismiss the protest as academic.