[Questions in Connection With Testimony on the Constitutionality of the GAO Bid Protest Function]

In response to a congressional request, GAO responded to additional questions concerning the constitutionality of its bid protest function. In a prior testimony, GAO suggested that federal agencies should not proceed with a protested procurement action for 90 days if a decision or a satisfactory justification for delay has not been issued. A recently amended Federal Acquisition Regulation (FAR) provided that the contracting officer seek an agreement with the contractor for a no-cost performance suspension if it appeared that the award was invalidated. GAO found that: (1) agencies withheld award where a preaward protest was filed unless the contracting officer determined that the award was advantageous to the government; (2) the Office of Management and Budget (OMB) directed agencies not to follow the statutory stay provisions of the Competition in Contracting Act (CICA) but to follow the FAR requirements; and (3) the agencies were in substantial compliance with CICA standards and the OMB directive.