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- Title
GAO V. COFC, CONFLICTING ADJUDICATORY APPROACHES TO KEY PERSONNEL ABSENCES: RESOLVING THE CIRCUIT SPLIT BY STRIKING A FAIR BARGAIN.
- Authors
Green, Jacob
- Abstract
The circuit split between the Court of Federal Claims (COFC) and the Government Accountability Office (GAO) in the resolution of bid protests that involve key personnel absences that occur after the deadline to submit proposals has expired must be resolved. GAO's approach to the issue imposes a disclosure duty on contractors that clashes with a recent COFC opinion finding that no such duty exists. Allowing this split to linger harms both contractors and the government, who find themselves unsure of how to proceed after the disparate rulings. Compounding the dilemma is the impact of the Great Resignation, as employees from the entire economy, including government contractors, have become more mobile than ever in search of better employment opportunities. To resolve the conflicting authority, three changes should be made. First, the Federal Acquisition Regulation (FAR) should be revised to include the GAO duty to disclose. Second, solicitation policy should include preferences to state key personnel requirements as performance specifications. Finally, departing employees should be permitted to sign letters of commitment to perform the contracts being completed before leaving their former employer. This solution accounts for the concerns of contractors, ensures that the government obtains what it bargains for, and restores efficiency to the system by avoiding drawn-out bid protests that drain contractors’ funds and public resources.
- Subjects
UNITED States. Government Accountability Office; PUBLIC demonstrations; GOVERNMENT contractors; GOVERNMENT control; PUBLIC contracts
- Publication
Public Contract Law Journal, 2023, Vol 53, Issue 1, p241
- ISSN
0033-3441
- Publication type
Article