“The New Atomic Age: Advancing America’s Energy Future”

1[House Hearing, 119 Congress]2[From the U.S. Government Publishing Office]34                                 ______56                          BID PROTEST REFORM:78                       UNDERSTANDING THE PROBLEM910=======================================================================1112                                HEARING1314                               before the1516                 SUBCOMMITTEE ON GOVERNMENT OPERATIONS1718                                 of the1920              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM2122                     U.S. HOUSE OF REPRESENTATIVES2324                    ONE HUNDRED NINETEENTH CONGRESS2526                             FIRST SESSION2728                               __________2930                             JULY 22, 20253132                               __________3334                           Serial No. 119-403536                               __________3738Printed for the use of the Committee on Oversight and Government Reform3940[GRAPHIC(s) NOT AVAILANLE IN TIFF FORMAT4142    Available on: govinfo.gov, oversight.house.gov or docs.house.gov4344                 U.S. GOVERNMENT PUBLISHING OFFICE4561-713 PDF                      WASHINGTON : 20254647              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM4849                    JAMES COMER, Kentucky, Chairman5051Jim Jordan, Ohio                     Robert Garcia, California, Ranking52Mike Turner, Ohio                        Minority Member53Paul Gosar, Arizona                  Eleanor Holmes Norton, District of54Virginia Foxx, North Carolina            Columbia55Glenn Grothman, Wisconsin            Stephen F. Lynch, Massachusetts56Michael Cloud, Texas                 Raja Krishnamoorthi, Illinois57Gary Palmer, Alabama                 Ro Khanna, California58Clay Higgins, Louisiana              Kweisi Mfume, Maryland59Pete Sessions, Texas                 Shontel Brown, Ohio60Andy Biggs, Arizona                  Melanie Stansbury, New Mexico61Nancy Mace, South Carolina           Maxwell Frost, Florida62Pat Fallon, Texas                    Summer Lee, Pennsylvania63Byron Donalds, Florida               Greg Casar, Texas64Scott Perry, Pennsylvania            Jasmine Crockett, Texas65William Timmons, South Carolina      Emily Randall, Washington66Tim Burchett, Tennessee              Suhas Subramanyam, Virginia67Marjorie Taylor Greene, Georgia      Yassamin Ansari, Arizona68Lauren Boebert, Colorado             Wesley Bell, Missouri69Anna Paulina Luna, Florida           Lateefah Simon, California70Nick Langworthy, New York            Dave Min, California71Eric Burlison, Missouri              Ayanna Pressley, Massachusetts72Eli Crane, Arizona                   Rashida Tlaib, Michigan73Brian Jack, Georgia                  Vacancy74John McGuire, Virginia75Brandon Gill, Texas7677                                 ------7879                       Mark Marin, Staff Director80                   James Rust, Deputy Staff Director81                     Mitch Benzine, General Counsel82             Jenn Kamara, Senior Professional Staff Member83                 Jack Furla, Professional Staff Member84                      Bill Womack, Senior Advisor85      Mallory Cogar, Deputy Director of Operations and Chief Clerk8687                      Contact Number: 202-225-50748889                  Jamie Smith, Minority Staff Director90                      Contact Number: 202-225-505191                                 ------9293                 Subcommittee On Government Operations9495                     Pete Sessions, Texas, Chairman9697Virginia Foxx, North Carolina        Kweisi Mfume, Maryland, Ranking98Gary Palmer, Alabama                     Minority Member99Tim Burchett, Tennessee              Eleanor Holmes Norton, District of100Brian Jack, Georgia                      Columbia101Brandon Gill, Texas                  Maxwell Frost, Florida102                                     Emily Randall, Washington103                         C  O  N  T  E  N  T  S104105                              ----------106107                           OPENING STATEMENTS108109                                                                   Page110111Hon. Pete Sessions, U.S. Representative, Chairman................     2112113Hon. Eleanor Holmes Norton, U.S. Representative, Ranking Member..     3114115                               WITNESSES116117Mr. Kenneth Patton, Managing Associate General Counsel, U.S.118  Government Accountability Office119Oral Statement...................................................     6120121Mr. Christopher Yukins, Research Professor, Government122  Procurement Law, George Washington University Law School123Oral Statement...................................................     7124125Mr. Zachary Prince, Partner, Haynes Boone LLP126Oral Statement...................................................    10127128Written opening statements and bios are available on the U.S.129  House of Representatives Document Repository at:130  docs.house.gov.131132                           INDEX OF DOCUMENTS133134  * Article, Orlando Sentinel, ``FL Disaster Pipeline Funnels135  Millions to Politically Connected Contractors''; submitted by136  Rep. Frost.137138The documents listed above are available at: docs.house.gov.139140                          ADDITIONAL DOCUMENTS141142  * Questions for the Record: Mr. Patton; submitted by Rep.143  Sessions.144145  * Questions for the Record: Mr. Prince; submitted by Rep.146  Sessions.147148  * Questions for the Record: Mr. Yukins; submitted by Rep.149  Sessions.150151These documents were submitted after the hearing, and may be152  available upon request.153154                          BID PROTEST REFORM:155156                       UNDERSTANDING THE PROBLEM157158                              ----------159160                         TUESDAY, JULY 22, 2025161162                     U.S. House of Representatives163164              Committee on Oversight and Government Reform165166                 Subcommittee on Government Operations167168                                                   Washington, D.C.169170    The Subcommittee met, pursuant to notice, at 10:06 a.m., in171room HVC-210, U.S. Capitol Visitor Center, Hon. Pete Sessions172[Chairman of the Subcommittee] presiding.173    Present: Representatives Sessions, Comer, Foxx, Palmer,174Burchett, Gill, Mfume, Norton, and Frost.175    Mr. Sessions. Good morning. And welcome to today's hearing176on potential reforms to a bid process--protest process. This is177the hearing of the Subcommittee on Government Operations and178the Federal Workforce [sic], and we will come to order.179    And I would like to welcome everybody.180    Without objection, the Chair may declare a recess at any181time. And I would recognize myself for the purpose of making an182opening statement.183    I understand the gentleman from Tennessee has a motion. The184gentleman is recognized.185    Mr. Burchett. Thank you, Mr. Chairman.186    I move to direct the Chairman of the full Committee to187authorize and issue a subpoena for Ghislaine Maxwell to appear188for a deposition.189    Mr. Sessions. Thank you very much. That motion by the190gentleman from Tennessee, all those in favor, signify by saying191aye.192    [Chorus of ayes.]193    Mr. Sessions. All those opposed, signify by saying no.194    [No response.]195    Mr. Sessions. In the opinion of the Chair, the ayes have196it. The motion is agreed to.197    The Committee will now resume its hearing. I thank the198gentleman from Tennessee.199    Mr. Burchett. Thank you, Mr. Chairman, for your attention200to this matter.201    Mr. Sessions. I recognize myself for the purpose of making202an opening statement.203204OPENING STATEMENT OF CHAIRMAN PETE SESSIONS REPRESENTATIVE FROM205                             TEXAS206207    Mr. Sessions. And this is important today that we have208gathered together, and we have three important witnesses who209will help guide this Committee on what I believe is--should be210a regular process as part of the success to ensure that the211American people put trust in the Federal Government to spend212their taxpayer dollars wisely. And as we need to continue our213oversight to ensure, not only that, but also that we listen to214professionals who deal with these issues to provide us status.215    In Fiscal Year 2024, the Federal Government spent about216$755 billion on goods and services through the contracting217process. And while there is significant focus on what Federal218agencies bought, we need to focus also on that process and how219they do so.220    Part of the contracting process includes the mechanisms221known as a bid protest that serves to ensure government222procurements are competitive and fair. I believe this is an223important goal, so it is incumbent upon the Subcommittee, this224Subcommittee, Government Operations and the Federal Workforce225[sic], to review the bid process as part of our regular226oversight. And, indeed, we have looked at this process. We have227learned that there are concerns in feedback that must be228reviewed to determine whether changes to our system are in229order.230    Critics of the current process say that the bid protests231have become ingrained in the solicitation and the award232process, with companies factoring in a protest as soon as the233contract is announced. Other critics say that contracting234officers are more concerned with creating the best paper record235to defend their decisions rather than achieving the best236results for the Federal Government and the United States237taxpayer. Supporters of the process who want reforms say that238delays are due to bureaucratic red tape at the procuring239agency; either the agency is too slow in developing240requirements or too slow to implement corrective actions.241    While there are potentially a number of problems in need of242solution, it appears to me that the process may be243overutilized. This makes it difficult for agencies to get the244goods or services that they need, reducing their ability to245timely deliver on their mission. I am aware of a variety of246these issues that need to be considered.247    So, is it too easy to protest? Can we maintain fairness248while requiring more stringent criteria be met before a249complaint can be filed? Are there too many bites at the apple250for those who protest? Timeframes are involved in that. If a251party does not like the results they get, are they bogging down252the system by relitigating what they really wanted in the first253place? Are there additional steps that can be taken before254solicitation is issued which would prevent protests once an255award is made? Should we adopt a ``loser pays'' approach, and256how would this work?257    It seems to me that this and other solutions could reduce258and limit serial protesters who lodge a protest because they259have nothing to lose. That is why we are here today.260    We are here today to ask three people who are deeply261involved in this process and have a vast background who are262able to help guide, not only this Subcommittee, but I believe263Members of Congress to where we understand more about the264process that we ask questions about.265    As we examine this bid protest, as in the case with many266other issues, Ranking Member Mfume and I want to investigate.267We need to ensure that we have the right information to make268good decisions that, with your guidance, will help us, and I am269concerned we do not have those available to us, until today. We270have a lot of things that are stories. We have a lot of things271where people say things. Perhaps there is even a viewpoint272about--with an unsolicited amount of creative information or273information from those who are involved in the process who have274opinions. But these insights are all important, and if we begin275that story today with people who are in the know, who can guide276us, it is helpful.277    The Trump Administration is committed to reforms, and here278in this Subcommittee, we are going to listen to that venue. We279believe the vehicle to do that is by an open hearing, one that280is not just matched with Republicans and Democrats, but good281government people, and that is what we believe we have on the282side of Republicans and our friends that are Democrats who are283here today who serve on this Government Operations284Subcommittee. We want to make sure that we are approaching285problems, issues, and ideas thoughtfully.286    So, today we will hear from distinguished subject matter287experts who are in the field, who understand the problem, who288know that ultimately we want to make sure that we are reviewing289this to be thoughtful about what we are doing.290    So, with that said, I would now yield to the Ranking Member291or his designee, which in this case would be Ms. Norton. Ms.292Norton, thank you very much. The gentlewoman is recognized.293    Ms. Norton. Thank you, Mr. Chairman. And thank you to the294witnesses for being here today.295296OPENING STATEMENT OF ELEANOR HOLMES NORTON REPRESENTATIVE FROM297                    THE DISTRICT OF COLUMBIA298299    Ms. Norton. On this Subcommittee, we have been steadfast in300our bipartisan work. Together, we have committed to identifying301solutions to longstanding challenges faced by our Federal302agencies, including improper payments, financial management,303and fraud prevention at the Department of Defense.304    We have long recognized these issues that complicate the305efforts of Federal agencies to be the stewards of taxpayer306resources that Americans deserve. On this specific topic of bid307protest, however, it is essential that any changes we make to308the system are guided by data,--data that in some cases we do309not yet have.310    The U.S. Government is the largest buyer of goods and311services in the world. It represents an important opportunity312for businesses offering solutions to that can help our Federal313agencies meet their goals in serving the American people.314    The bid protest process plays an essential role for315preserving public trust by helping to prevent corruption and316unfair deals. It ensures that these doors of opportunity are317opened to businesses of all sizes and backgrounds and not just318those who are politically well connected. The bid process keeps319our Federal agencies accountable and guarantees that if you are320offering a good deal to the American public, your bid on321government work has a fair shot.322    A fair and effective bid process also ensures that the323American people are getting value for their hard-earned money324by promoting robust and fair competition among contractors and325government businesses. The sense of fairness encourages the326innovative small businesses owned by veterans and minorities to327jump into this competitive process environment to offer their328services.329    The immense volume of contracts awarded across the Federal330Government calls for special attention from Congress and331executive branch leaders. It is imperative that the DOD and the332Federal agencies are empowered to procure goods and services333efficiently. I do not believe this goal requires sacrificing334accountability by erecting overtly burdensome barriers to335contractors wishing to protest potential unfairness and336impropriety on the part of the government.337    As we examine this issue today and as this Subcommittee338engages in efforts to reform our procurement system, several339aspects of the bid protest system should be top of mind.340    First, according to Government Accountability Office (GAO),341bid protests are frequently successful in identifying a342problem, resulting in corrective action by the agency. The data343show that the majority of bid protests are valid. If we344undermine this process, we may get worse outcomes from our345agencies and unfair practices can go uncorrected.346    Second, the number of contracts actually challenged through347bid protest is small. For example, less than two percent of DOD348contracts are protested every year. That number appears to be349decreasing in recent years. It is fair to ask why that issue is350a priority for reform in the face of other serious challenges.351    Third, additional barriers to bringing a bid protest352threatens to unfairly and disproportionately affect smaller353businesses that have fewer financial resources. These are the354very businesses we should be incentivizing to work with the355Federal Government. We should not be driving them away by356reducing their recourse in the event of an improper process.357    We hope that we can work together to look for ways to358reduce the need for bid protests by improving the procurement359bid itself. We should be encouraging agencies to take hard360looks at the results of their bid protests to see where they361went wrong and where they can do better next time. And we362should look for patterns in bid protests as blueprints for363legislative reforms that might be needed.364    Reports by the GAO and other independent researchers365indicate that DOD does not collect the data necessary to366analyze the impact of bid protests on DOD procurements of367costs. It also does not systematically analyze the outcome of368bid protests to identify areas of concern and its procurement369processes. We cannot solve a problem we do not fully370understand. I hope we can get more of that understanding today371from our witnesses and continue to work together to find common372sense solutions.373    I know my colleagues on this Subcommittee share my goal of374an efficient and fair government procurement system. I hope we375can continue to safeguard the bid protest process as the376important accountability mechanism that it is.377    Thank you, and I yield back.378    Mr. Sessions. Ms. Norton, thank you very much, not only for379your comments, but the expectation level that you have380established on behalf of the Minority that could be achieved381today. And I want you to know that I wholeheartedly agree, not382only with your comments, but your desire for us to continue383working together to see this issue in a way that will be in the384best interest of, not just the taxpayer, but the fairness that385will be seen by the public of the fairness behind the process.386And I want to thank you very much.387    I am now prepared to move to our witnesses. I would like to388introduce them, if I could, please. I met with all three of389them and found them all three to be, not only professional390young people, but bring an expertise that I believe is391important to the hearing today.392    First, Mr. Kenneth Patton is managing Associate General393Counsel at the GAO, the Government Accounting Office, where he394is responsible for heading and managing the attorneys and the395staff who resolve bid processes filed at the Government396Accounting Office.397    Second, Mr. Christopher Yukins is a research professor in398government procurement law at George Washington University Law399School. He teaches on contract formations, bid protests, and400other issues in public procurement.401    Last, Mr. Zachary Prince is a partner at Haynes and Boone,402which is a law firm. His practice encompasses all areas of403government contract law, and he counsels domestic and404international clients on a wide range of issues, including bid405protests.406    So, I want to thank each of you for being here today, and407would ask that each of you please rise for the purpose of me408administering the oath of office--the oath to witnesses.409    Pursuant to Government Reform Subcommittee, Committee Rule4109(g), the witnesses will please stand and raise their right411hand.412    Do you solemnly swear or affirm that the testimony that you413are about to give is the truth, the whole truth, and nothing414but the truth, so help you God?415    [Chorus of ayes.]416    Mr. Sessions. Let the record show that the witnesses each417answered in the affirmative.418    Thank you very much. You may take your seat.419    We will now move to recognize our witnesses for the purpose420of making an opening statement.421    I appreciate each of you being here, and let me remind the422witnesses that we have read your written testimony and it will423appear in full in the hearing record. I would also ask that you424recognize that I had a conversation with each of you yesterday425and would intend to treat you all fairly on the description of426the 5 minutes or the time that we yielded you. Each of you are427witnesses that are coming before this Subcommittee, and I am428not going to strictly hold you to 5 minutes. I am going to hold429you to the points that you would wish to make, your advice to430this Subcommittee, and the importance of us making sure that we431have an opportunity to ask questions back.432    You will see that there will be Members who come and go,433but we are going to move forward.434    As a reminder, please press the button on your microphone435in front of you when it is time for you to speak so that the436members can hear you. And when you begin to speak, the light in437front of you will move through the colors, green and then438yellow and then to red. But I would encourage you to, please,439make sure that the things which you would wish to discuss with440the Subcommittee are adequately performed.441    I now recognize the distinguished gentleman, Mr. Patton,442for his opening statement. The gentleman is recognized.443444                  STATEMENT OF KENNETH PATTON445446               MANAGING ASSOCIATE GENERAL COUNSEL447448             U.S. GOVERNMENT ACCOUNTABILITY OFFICE449450    Mr. Patton. Chairman Sessions, Ranking Member Mfume, and451Members of the Subcommittee, thank you for the opportunity452today to talk about bid protest and possible bid protest453reform.454    The Competition in Contracting Act of 1984, or CICA,455establishes that GAO is to provide for the inexpensive and456expeditious resolution of protests. Consistent with this457authority, GAO resolves more than 1,000 protests every year,458all within 100 calendar days. However, over the last ten years,459the number of protests filed at GAO has steadily declined by 32460percent, and the number of protests filed at DOD has declined461by an even greater proportion, by 48 percent.462    Notwithstanding that decline, the data from our annual bid463protest reports reflects that the effectiveness rate, that is,464the rate at which protesters receive some form of relief,465either as a result of GAO sustaining a protest or an agency466taking corrective action, has remained relatively stable at 50467percent.468    Recently, section 885 of the National Defense Authorization469Act for Fiscal Year 2025 included a provision for GAO to470propose various possible reforms to the protest process, as471well as to create benchmarks of the costs of bid protests. In472this regard, while the benefits of the protest system in473promoting accountability and integrity in Federal procurements474are important, those benefits must be balanced against the475public's interests in allowing the government to efficiently476acquire the goods and services necessary to discharge their477obligations.478    Section 885 included three provisions. First, GAO was to479consider enhanced pleading standards that protesters must meet480before receiving access to administrative records of DOD481procurements. Our regulations currently provide a robust482pleading standard, and protests that do not meet this standard483are dismissed, typically early in the process and prior to484receiving access to agency records.485    While our current pleading standard allows us to dismiss486legally insufficient protests early in the process, we propose487to enhance our standard to make it clearer that protest488allegations must be credible and supported by evidence.489    Second, section 885 included a provision for GAO to develop490benchmarks of the cost to DOD of resolving protests and the491lost profits of the awardee during the pendency of a protest.492However, during the preparation of our proposal, we found that493sufficient data was unavailable concerning DOD's protest costs494and lost profit rates to calculate reliable benchmarks.495    For example, DOD does not track or record the cost of bid496protests because it is not statutorily required to do so.497Additionally, DOD expressed the view that given the low number498of protests of DOD procurements, the cost of tracking such data499would outweigh the benefits.500    Third, section 885 required GAO to propose a process for an501unsuccessful protester to pay the government's protest-related502costs and contract awardees' lost profits. Without sufficient503data, however, it was not possible to create the benchmarks504envisioned by section 885.505    GAO remains neutral on creating a fee-shifting process. We506believe that existing authorities are sufficient to efficiently507resolve and limit the adverse impacts of protests filed without508a substantial or legal factual basis. Consistent with the509requirements of section 885, however, we discuss two potential510processes and practical and policy implications for511congressional consideration.512    First, Congress might consider a focused statutory513requirement for DOD to include a contract provision that would514permit DOD to recoup or otherwise withhold profit or fee where515an incumbent contractor filed a protest that is dismissed as516legally or factually insufficient.517    Second, Congress might consider authorizing GAO to require518a protester to reimburse DOD for the cost incurred in handling519the protest, as well as any lost profits incurred by the520awardee whose contract was stayed during the pendency of a521protest.522    The latter process would constitute a significant departure523from GAO's current statutory authorities and would require524significant structural changes to CICA and GAO's other525statutory authorities.526    Chairman Sessions, Ranking Member Mfume, and Members of the527Subcommittee, this completes my prepared statement. I would be528pleased to respond to any questions that you may have.529    Mr. Sessions. Mr. Patton, thank you very much. Your530detailed conversation with us was about 5 minutes and 10531seconds. Congratulations. Job well done.532    I would now move to recognize Professor Yukins for his533opening statement. Mr. Professor, you are recognized.534    Mr. Yukins. Thank you, sir. Chairman Sessions, Ranking535Member----536    Mr. Sessions. If you could please push that button that is537right in front of you.538    Mr. Yukins. Thank you, sir.539    Mr. Sessions. Thank you, sir.540541                STATEMENT OF CHRISTOPHER YUKINS542543                       RESEARCH PROFESSOR544545                   GOVERNMENT PROCUREMENT LAW546547            GEORGE WASHINGTON UNIVERSITY LAW SCHOOL548549    Mr. Yukins. Chairman Sessions, Ranking Member Mfume, and550Members of the Subcommittee, thank you for the opportunity to551speak to you today on bid protest reform.552    My name is Christopher Yukins, and I serve as the Lynn553David Research Professor in the Government Procurement Law554Program at the George Washington University Law School. Our555program is launched by Professors Ralph Nash and John Cibinic556in the early 1960s, and is one of the leading programs of its557kind in the world.558    Although I am testifying today in my personal capacity, I559am proud to note that all of us testifying before you today are560connected with our program at GW Law School. Ken Patton is a561member of our board of advisors and Zachary Prince teaches on562negotiations in the program.563    I have spent over three decades working on bid protest as564an academic and as a lawyer in Federal, state, and local565forums. I represented the United States in bid protest and566appeals as a lawyer in the U.S. Department of Justice. I worked567on several hundred protests as a private lawyer and as a568testifying expert. I helped author reports for the569Administrative Conference of the United States and the Defense570Department, at the request of Congress, on bid protest reform.571Finally, I serve as the academic advisor to the American Bar572Association's initiative to revamp the Model Procurement Code,573which is used by state and local governments across our Nation.574And that reform of the Model Procurement Code will almost575certainly lead to improvements to bid protests at the state and576local levels here in the United States.577    The good news is that bid protests in the U.S. Government578are healthy and well-established. Indeed, they are a model for579the world. And I just note, Mr. Chairman, that our procurement580system--our procurement law system started in the Revolutionary581War. It is exactly 250 years old. It is a real mark of success582of our Nation. And we have a much longer established583procurement system than any other country in the world, that I584am aware of.585    The structure of our bid protest system which--with586protests before the agencies, an independent agency such as587GAO, and the courts--is seen in governments around the world.588American companies working abroad regularly rely on other589countries' bid protest systems, which in many ways track the590U.S. model, to ensure they are treated fairly by other591governments and may turn out to be very important for Members592of the Subcommittee.593    The European Union has talked about launching a retaliatory594weapon in the ongoing tariff discussions, and that will595specifically focus on public procurement. So, the strength and596fairness of bid protest systems on both side of the Atlantic597will be very, very important if that happens.598    Many international trade agreements and conventions which599the United States has joined, such as the World Trade600Organization's Government Procurement Agreement and the U.N.601Convention Against Corruption, specifically call for effective602bid protest systems.603    Bid protests have proven effective nationally and604internationally because they allow those with the best605information on procurement failures, typically other bidders,606to bring procurement failures to light. Those protesting607bidders, in essence, serve as whistleblowers on fraud, waste,608and corruption. Impairing protests--in essence, discouraging609those whistleblowers--would undermine bid protest core goals,610which are, one, to reinforce competence in the competitive611process, and two, to identify management failures in the612procurement system.613    Bid protests can be flash points of contention between the614agencies and industry, and have long been the focus of reform615efforts. Those reform efforts are often quite useful.616Sometimes, though, they could have serious and negative617unattended consequences.618    In my written testimony, I have addressed several of the619current proposals. The first is the value of two-bite protests620that may be heard both by GAO and the courts. And I mentioned--621for members of the Subcommittee, I mentioned that I have done622hundreds of protests. I have only had two two-bite protests or623two--where that came up, whether or not we should go from GAO624onto the Court of Federal Claims. One of them was, for tactical625and legal reasons, it was appropriate to abandon the GAO626protest and go to the court.627    The other time it occurred, actually, was we earned a GAO628protest, we lost the GAO protest, but something smelled funny.629Something smelled funny. Well, as a lawyer you get that630instinct, this smells weird. But we did not--we were thinking631about whether or not to go to the court because you get a more632complete record of the court, but in the meantime this company,633the opposing company, which was one of the leading companies in634the United States, was raided by the FBI because, in fact,635there was something corrupt going on.636    So, the two-bite protest can be very important to637preventing tactical circumstances but also just when there is638basic issues of whether or not enough of the record has been639produced at the GAO process.640    I also address in the written testimony whether incumbent641contractors challenging new contracts are really a problem in642the procurement system, and if so, whether GAO and the courts643already have the tools necessary to address that problem.644    Just note for the Subcommittee that you are going to hear a645lot of statistics on where we are in bid protest, that could646change dramatically in the next few years. With artificial647intelligence, it is possible that we could have an explosion in648the number of bid protests. Also, there was, in Sweden you can649actually buy insurance. As a company, you can buy insurance for650bid protest. The companies in Sweden bring many more bid651protests because the insurance companies pay for them there.652    So, with that possible explosion bid protest, any reforms653have to accommodate a system with many more bid protests going654through. That just could be a reality coming down the road.655    In my written statement, I discuss whether meritless656protests truly clog the system given the high standards of657proof imposed by GAO and the courts. I suggest a protesting658company should not be required to post bonds, as that would659only further burden the system and so discourage whistleblowing660by protesters.661    The bond requirement is something that has existed for a662number of years in the United Kingdom. And when you bring a bid663protest in the United Kingdom, you have to oftentimes post a664very high bond. Many people view that as a serious barrier to665bid protest, rendering the entire system ineffective, arguably.666    I suggest that protests can and should be put on more667rigorous timetables, as, Mr. Chairman, you referred to, both of668the agencies and the courts. I also speak to promising669potential reforms and expanded debriefings for losing bidders,670which would help reduce protests in the civilian agencies.671    As we discussed, for me as a lawyer, the epiphany was, I672worked on, with a major, major--one of the top five defense673contractors. I worked on a billion dollar task order, and we674reviewed a thorough, a 100-page-plus debriefing from the675Defense Department agency involved, it was a billion dollar676task order, as I said, and the company, although we told the677company they had clear grounds for a protest, they could win on678a protest at GAO, the company decided not to protest its loss679on a billion dollar task order because they had a complete680statement, 100-page statement, of why the agency had reached681its decision, and they said, you know what, we disagree with682this, but we are not going to protest.683    And part of that was because, with the expanded debriefing,684the managers on the procurement were able to turn to their685senior managers and explain what happened because they had the686documentation.687    So, what all three of us will be talking about today, one688of the key reforms is taking that reform, taking those expanded689debriefings and extending them not just from the Defense690Department, but to the civilian agencies as well.691    I am also going to be talking about--I also spoke in my692written testimony about agency-level bid protests. I have693written a couple reports on that, as I mentioned. And agency-694level bid protests are really not used now to any extent, and695they would be a good and efficient way of moving forward with696the system, making it possible for agencies to handle protests697themselves.698    With that, Mr. Chairman, mindful of my time, I would like699to address--I would be glad to address any questions the700Subcommittee may have. Thank you, sir.701    Mr. Sessions. Professor Yukins, thank you very much, and702for taking me up on explaining the things which you believe703would be important for this Subcommittee to hear. Thank you704very much.705    Next, we move to Mr. Prince. Mr. Prince, happy birthday.706The gentleman is recognized.707708                  STATEMENT OF ZACHARY PRINCE709710                   PARTNER, HAYNES BOONE LLP711712    Mr. Prince. Thank you, Mr. Chairman.713    Mr. Chairman, Ranking Member, and Members of the714Subcommittee, thank you for having me today to speak on this715important issue of bid protest reform.716    As the Chairman mentioned at the outset, the U.S.717Government spends roughly $750 billion a year on government718contracts. That is three-quarters of a trillion dollars719annually. We must have a way to ensure integrity, transparency,720and fairness in how the rules of the game are established and721enforced.722    The way we do that is by empowering interested parties to723challenge governmental decisions before an impartial reviewing724board. That provides the critical oversight to keep the system725honest. It allows small businesses and new market participants726confidence that they are on an even playing field with the727large, experienced government contractors. The bid protest is a728way for these companies to ensure they are given a fair shake729and that the government has fully considered novel or730commercial solutions to its challenges. And this may be part of731why small businesses, in fact, file most bid protests.732    The system can be frustrating. There is no doubt about it.733There is nothing as annoying for an acquisition professional in734the government as having their decisions second-guessed.735Completely get that.736    For a company that is awarded a government contract, being737told they need to wait and cannot do anything, while a738competitor lodges what they believe is arguably a meritless739dispute, is, of course, frustrating as well. But despite the740perception, protests are infrequent and effective, and they are741growing less frequent and more effective as time goes on.742    Only a miniscule fraction of contracts are protested. The743RAND report in 2017 said that that was a third of a percent of744DOD awards, that it might be closer to one percent, depending745on how you calculate it, but we are still talking about a746really small amount of government contracts.747    And, in fact, most GAO protests, over 50 percent, are748effective. In other words, in more than half of protests, there749is enough of a perception of significant error that GAO either750rules in favor of the protester or recommends to the agency751that they take action in favor of the protester, or the agency752takes the opportunity to do so itself.753    There are undoubtedly abuses of the system, but the data754suggests that those abuses are rare, and remedies are already755built into the system. GAO can and has in rare instances756blocked protesters from filing new protests. The court can and757has imposed sanctions in the Court of Federal Claims. Bonds at758the court are already available upon request. And if the agency759has a compelling reason to proceed regardless of the protest,760it can and will go ahead with contract award and performance761regardless of the protest having been filed. It just has to762document it and justify it.763    At bottom, protests are already expensive. For somebody to764file a protest at GAO, it typically costs well in excess of765$100,000. The Court of Federal Claims, that can be double that766figure.767    Contractors understand the frustrations with the system.768They understand that costs are involved. They understand there769is a risk of irritating their customers. And they take the770decision to protest very seriously and, in my experience, quite771rarely, and the data bears this out.772    Given the critical role that protests have in ensuring773public funds are spent fairly and small businesses and new774market participants have an opportunity to participate775meaningfully, Congress should expand the protest remedy and776cutoff meaningless disputes about venue, specifically by777addressing, as I note in my written testimony, task order778protests; extending the jurisdiction of the Court of Federal779Claims; and explicitly recognizing jurisdiction for protests780involving other transaction authorities, which are a wonderful781mechanism for government advancement of important goals but can782go--involve billions of dollars annually and could go overseen783without explicit guidance.784    Congress should also expand the enhanced debriefing785requirements. DOD adopted this about a decade ago for certain786procurements. It has been remarkably effective at stopping787protests. By showing that an agency meaningfully considered the788offers and complied with its rules, showing disappointed offers789that the agency took their offer seriously, followed the rules,790even if the offers would disagree with the way the agency did791that, stops protests, because it shows that the protests maybe792are not likely to prevail, throwing good money after bad. The793contractors are savvy to that issue. This has been effective at794DOD. It should be extended to civilian agencies as well.795    The protest system has issues, but it is the best way that796we know, at the moment, to oversee the procurement system797meaningfully, and any changes need to be considered very798carefully for risk of unforeseen consequences, such as raising799barriers for small businesses, and preventing meaningful issues800from being raised and addressed.801    This concludes my prepared statement. I am glad to answer802any questions.803    Mr. Sessions. Mr. Prince, thank you very much.804    All three of you have provided this Subcommittee with, not805only professional advice, but each of you are appreciated for806being here.807    We now move to the Member questions. I would like to808recognize the distinguished gentleman from Tennessee, Mr.809Burchett. You are recognized for 5 minutes, sir.810    Mr. Burchett. When you said distinguished gentleman, Mr.811Chairman, I was not sure who you were talking about, but I812appreciate it. In my six years of Congress, I believe this is813the first time I have ever gotten to go first. I thought maybe814some of my Democrat friends were right, the rapture did come815and I was left behind, but I see there is some more folks out816there that think like I do, so I think we are okay.817    Mr. Prince, do you think it would be beneficial for the818Government Accountability Office to be more transparent about819the bid protest evaluation process for businesses?820    Mr. Prince. I do. And I think it would be very helpful for821GAO to continue its practice of publishing dismissal decisions,822which it has done more of. There has been a lot of talk in the823bar about whether they should also allow access to the public824to the docket, not just the listing of filings, but the825redacted pleadings. I do think that would be helpful just to826understand what arguments have been successful, how they have827been presented, and that would give agencies a better insight828into how to fix things in the front end.829    Mr. Burchett. Don't you think that the people, for good830reason, think this town is crooked as a dog's leg, literally,831and, you know, every time we attempt to brush something aside,832it just seems to create more controversy, and then we have to833go back and correct it. I just--transparency has never really834been a problem with me, and I appreciates that answer, sir.835    Mr. Yukin, did I say that name right? Yukon or Yukin? How836do you say it?837    Mr. Yukins. Yukins. Yukins, sir.838    Mr. Burchett. Okay. Well, Burchett, they massacre my name839every day of the week, so we are good.840    Are there any current laws or regulations in the bid841protest process that place unfair burdens on these businesses842and stifle economic prosperity?843    I see this a lot with the smaller folks. When I was county844mayor, the big boys could role in with their attorneys, you845know, some out there just hustling. Maybe a small minority846company has a lot of difficulty with this thing, and I was very847concerned about that. Could you address that, sir?848    Mr. Yukins. Yes, sir. Actually, ironically, it is at the849other end of the spectrum. And as the Chairman mentioned, there850is a need to align with what the Trump Administration is doing.851The Trump Administration and Senator Wicker, Chairman Wicker on852the Senate side, are clearly, sir, going to be using other853transactions more, Mr. Prince alluded to.854    There is--other transactions are--it is an oddly named855thing, but it basically means starting from scratch. You throw856the whole procurement system out the window and you write from857scratch. That creates a lot of problems.858    We teach contracting officers. About a third of my students859are contracting--midlevel contracting officers. They have no860idea how to negotiate these things, whereas their private861counterparts really do. So, in many ways the irony here is it862is not the small businesses, it is the government that is at863the disadvantage in other transactions for the reasons you864talked about, about public credibility and legitimacy. Very865important, as Mr. Prince said, to have as much transparency and866accountability as possible in other transactions.867    They are a good idea. Other transactions are a good idea868because they allow private capital to come in much more869aggressively, much more successfully than in the traditional870procurement process. So, other transactions is a good idea, but871we have to have transparency, we have to have accountability.872    Thank you.873    Mr. Burchett. All right. Finally, Mr. Patton, how often do874contractors pull their cases from the Government Accounting875Office and file new cases with the U.S. Federal Court of876Federal Claims? And probably just give me an estimate. I know877you cannot say specifically.878    Mr. Patton. Actually, unfortunately, you are right, we879cannot say specifically because we do not actually have the880insight into the data about what cases go from GAO to the881court.882    But what I can say is, typically, the Court of Federal883Claims has anywhere from 200 to 140 cases a year. Probably884about half of those may have had some prior life at GAO.885    Mr. Burchett. Do you have any idea what the percentage of886bid protests are meritless? Just off the top of your head, give887me a ballpark.888    Mr. Patton. Our sustain rate indicates 16 percent we889sustain. We have an effectiveness rate of 50 percent, which890means that there is something wrong in procurement, so the891agency takes it back. For those decisions that go to a merit892decision, the opposite of the 16 percent, those that we deny893probably do not contain a winning case or the protester was not894able to demonstrate a violation of law regulation that would895have had an impact on the award.896    Mr. Burchett. Okay. Okay. Real quickly, rapid fire, I am897about out of time, which legislative proposals would be the898most beneficial for Congress to implement to reform the bid899process--bid protest process? Mr. Patton?900    Mr. Patton. I would say get the data that you need to901identify the correct problem, because right now----902    Mr. Burchett. All right.903    Mr. Patton [continuing]. There is no real accuracy.904    Mr. Sessions. Out of time. Mr. Prince?905    Mr. Prince. I think the enhanced debriefing, extend that906out to civilian agencies.907    Mr. Burchett. All right.908    Mr. Yukins. Absolutely concur, enhanced debriefing.909    Mr. Burchett. Thank you, Mr. Chairman. As usual, this is910not the sexiest committee, but it is the one that gets down to911work. I appreciate you. Present company excluded, of course.912You are down there wearing something from the Jim Jordan913collection, I see, no jacket, so you are up on the sexy chart914now, Mr. Chairman. Thank you so much for this opportunity.915    Mr. Sessions. Mr. Burchett, thank you very much. I916appreciate being somewhere on the list, and I appreciate your917help.918    We have now moved to the distinguished gentleman, my dear919friend from Maryland, the Ranking Member, Mr. Mfume. The920gentleman is recognized.921    Mr. Mfume. Mr. Chairman, thank you very much.922    I want to thank Mr. Burchett also for sharing some923important information, and for his earlier action in the924Subcommittee today. And I mean that sincerely. Thank you.925    Mr. Chairman, I would be remiss if I did not at least also926thank the gentlewoman from the District of Columbia, Ms.927Norton, for opening up for this side of the aisle, and for her928ever present work on this Committee. And thank you, sir, for929calling this hearing.930    I want to just get a little bit of clarity more than931anything else. I have gone through much of your written932testimony.933    Mr. Patton, I think I want to start with you so that I am934clear. Did I hear you say that if a bid protest fails, that the935DOD could or should seek compensation, and if that were not the936case, perhaps GAO should do that?937    Mr. Patton. I think what we, at GAO, said with regard to938section 885 is that DOD does not collect data to determine what939the cost to DOD would be to recoup that amount, nor do they940collect data from the awardee to determine what lost profits941would be. There could be a lot of administrative and legal942concerns or issues to making a loser pay.943    Mr. Mfume. Why don't they collect the data?944    Mr. Patton. That is a good question. From their945perspective, they are not statutorily required to do so. And in946their view, the benefit of collecting the data--excuse me--the947harm, the effort outweighs the benefit to collecting that data.948They do not see a need since protests at DOD are trending949downward.950    Mr. Mfume. Well, one thing that is trending at DOD is that951they failed seven straight audits year after year after year,952and this Committee continues to point that out. So, if in this953case they do not see it in their interests or they do not have954statutory authority to do so, I just think they need to look at955the handwriting on the wall. Things are pretty much going south956with respect to DOD.957    What about the GAO's role in this? Do you see that if they958are not doing it because they don't have statutory authority,959that you could, should, or are doing it?960    Mr. Patton. GAO probably could not do it because access to961contractor data like that would require some mechanism to look962at it, to require the contractors to provide it. They do not963currently do so. So, it would be a challenge for GAO to do it.964    Mr. Mfume. Then what would you suggest be put in place for965them to at least provide GAO with that additional information?966    Mr. Patton. Initially, I think that the Department of967Defense would need to collect the data. And then, as you may968know, the Department of Defense's financial systems are on969GAO's high-risk list because they have an inability to manage970their financial system. So, there could be some additional971financial challenges for DOD in trying to accomplish that.972    Mr. Mfume. Yes, they are just running things terrible at973that agency, and yet, this Congress just voted a 13 percent974increase to what is already the largest slice of our budget.975And we cannot even get a clean audit, and they continue to be976on the watch list. Thank you very much.977    Mr. Prince, you, I think, suggested that--or said, I should978say, 50 percent of the bid protests that GAO looks at, they get979dismissed. Is that right?980    Mr. Prince. No. It is that 50 percent are deemed effective,981so----982    Mr. Mfume. Are deemed effective or ineffective?983    Mr. Prince. Effective.984    Mr. Mfume. Effective. Okay.985    Mr. Prince. So, in other words, in 50 percent of cases,986either it goes to a decision from GAO ruling in favor, or987recommending the agency take action in favor, or the agency988voluntarily takes corrective action.989    Mr. Mfume. And what happens to all the others? They just go990away?991    Mr. Prince. They either lose--I mean, they can go to a992decision or lose, or sometimes you get into the record, I have993had this experience personally, and you see there is nothing994there and you pull it because it is just not worth throwing995more good money after bad.996    Mr. Mfume. Now, I got a sense from you that you thought997that bid protests are not out of control and are not998ballooning. Is that correct?999    Mr. Prince. That is correct.1000    Mr. Mfume. So, how would you reconcile that with Mr.1001Yukins' statement that we ought to be on the lookout for what1002is happening with artificial intelligence?1003    Mr. Yukins, I think you said there will be an explosion in1004bid protests, if I am correcting--or correctly referencing what1005your testimony is. Is that correct?1006    Mr. Yukins. Yes. There could be an explosion with1007artificial intelligence or the way that people fund bid1008protests changes. What I was getting at, sir, was that if1009there--it is important that any solution that Congress brings1010to this process be one that does not create clunky solutions,1011because if we have a system that is expanding very rapidly and1012we have clunky things built into it, well, the system could1013collapse.1014    Mr. Mfume. So, on another part of that, you do support1015expanding debriefings. Is that correct?1016    Mr. Yukins. Yes, sir, absolutely. It is a way--it is a very1017cheap and effective way, and, again, with artificial1018intelligence, it becomes easier and easier to redact the1019documents. If you have 100-page document, very quickly1020artificial intelligence can pick out what is confidential and1021then the document can be produced to the bidders.1022    Mr. Mfume. And, Mr. Prince, you also support expanding the1023debriefings?1024    Mr. Prince. I do.1025    Mr. Mfume. Okay. Mr. Chairman, I have no more questions.1026Thank you.1027    Mr. Sessions. Thank you very much.1028    We now move to the distinguished gentleman from Texas. The1029gentleman, Mr. Gill, is recognized for 5 minutes.1030    Mr. Gill. Thank you, Mr. Chairman, and thank you to the1031witnesses for being here and taking the time.1032    Mr. Patton, I would like to start with a few questions for1033you. My understanding is that GAO serves as an arbiter of bid1034protest challenges, but the decisions are nonbinding. Is that1035correct?1036    Mr. Patton. Yes, sir, that is correct.1037    Mr. Gill. What is the rationale for contractors to use the1038GAO as a venue for bid protests given that they are nonbinding?1039    Mr. Patton. One of the benefits of the GAO bid protest1040system is that, if you file within certain timeframes, you get1041what is called an automatic stay of performance, meaning that1042the agency cannot move forward with awarding or performing the1043contract. That allows GAO time to administer and resolve the1044protest. That is one of the chief benefits of filing at GAO.1045    Mr. Gill. Got it. Do you think the GAO would like those to1046be binding, those decisions?1047    Mr. Patton. I think GAO recognizes that there are some true1048separation of powers issues. Since GAO is a legislative branch1049agency, we do not want to be perceived as overstepping our1050lane.1051    Mr. Gill. Right. Do you think it would change the landscape1052if they were?1053    Mr. Patton. I think there would be significant questions1054that would need to be resolved if GAO were given authority or1055asked to do things that might be perceived to be an executive1056function.1057    Mr. Gill. Got it. And can you provide a couple of examples1058of some more egregious examples of companies' bid protesting?1059    Mr. Patton. In what context? We have protests where we have1060sustained protests. We have protests where we have denied.1061There have been some instances, as I think alluded to before,1062we did have a VEXIS protester who filed numerous, what we might1063consider, meritless protests, and we debarred that individual1064company from filing protests at GAO.1065    Mr. Gill. Do you see that happen often?1066    Mr. Patton. Not at all. Actually, that was an anomaly. And1067since 2018, when we have implemented our electronic protest1068docketing system with an attended filing fee, we have seen a1069drop in protests and a drop in repeat filers.1070    Mr. Gill. And that is what I was about to ask you. It seems1071like the current process has the potential to create delays1072because contractors would file with the GAO first, withdraw1073their case when they anticipate losing, and then subsequently1074initiate a new case with the Court of Federal Claims. And you1075are saying that does not happen often. Is that correct?1076    Mr. Patton. Do not have the data to answer that question,1077but what I can say is the Court of Federal Claims has around1078200 or so cases. So, if that is happening, it is happening in a1079very, very small number of cases.1080    Mr. Gill. Got it. Do you think that this process should be1081reformed in any way?1082    Mr. Patton. I think that if there are legitimate questions1083that people have about its efficacy, those ought to be1084explored. And to the extent that there are concerns, they1085should be addressed. But I do think that we do need the data to1086support whatever concerns might be identified.1087    Mr. Gill. Based on your experience, what changes would you1088like to see?1089    Mr. Patton. Right now, we do think that the system is1090operating as intended. I think that it is--we have not seen any1091need to initiate any reforms. That does not mean that we cannot1092do so if some are, in fact, identified.1093    Mr. Gill. Got it. Thank you, Mr. Patton.1094    And I yield the remainder of my time to the Chairman.1095    Mr. Sessions. Thank you very much. The gentleman now has1096yielded back his time.1097    I would like to amplify, if I can in the remaining minute1098and 30 seconds, the admiration that I have for each of you, all1099three of you, to come and engage this Subcommittee. There are1100always public comments, there are always public perceptions1101about bids, processes, fairness, the processes involved in1102that, and I have found that in speaking to each of you three1103who are deeply involved in this process, that you are providing1104this Subcommittee with your feedback, notwithstanding there are1105Members who have offered some bit of a challenge to that, and1106sustained not only where we are but what we are attempting to1107do.1108    I will speak to it on my 5 minutes, but I wanted to use1109these 42 seconds remaining to let you know that I see little1110difference between you when you all talk about the system,1111except to say that you want it to remain fair. You want it to1112remain something that is a part of a public discussion. You are1113open not just to feedback but that you find that the openness1114by each of the agencies as they go about their business is1115properly performed by GAO, that GAO has a part in that process,1116and that outside counsel or these companies have knowledge.1117    And I want to thank you. And I think that Mr. Gill started1118to get at that by asking the question, well, do you need any1119changes? And I think that what really happened is Mr. Patton1120clearly said there are perceptions, there are ideas out there,1121but in their review, please make sure you address those before1122you go change anything.1123    And I want to thank the distinguished gentleman from Texas.1124We now yield back the time and move to the gentlewoman from1125Washington, D.C., for her 5 minutes. The gentlewoman is1126recognized.1127    Ms. Norton. Thank you, Mr. Chairman.1128    The government should get the best value for taxpayers when1129contracting with businesses for goods and services. To do so,1130it is important that government offices have an experienced and1131qualified workforce that knows how to investigate our complex1132system of procurement laws and regulations. Unfortunately, this1133Administration has instead seen fit to gut the Federal1134workforce and its experienced workers.1135    Secretary Hegseth has announced plans to reduce the1136Department of Defense personnel by tens of thousands,1137threatening to undermine institutional knowledge among Defense1138Department procurement professionals. As a result, this1139Administration's capricious and cruel policies--of their cruel1140policies, we are losing valuable expertise every day. These1141cuts are deliberately undermining government efficiency's1142ability to achieve their missions, including complex1143procurements.1144    Mr. Prince, in your experience, how important is it for1145agency procurement officials to have the right experience and1146training?1147    Mr. Prince. Congresswoman, it is absolutely pivotal. In1148order to have any meaningful procurement changes that have been1149proposed in a broader sense, to have an effective acquisition1150system, we need well-trained acquisition workforce members.1151    Ms. Norton. Thank you, Mr. Prince.1152    Another question for you. How do you expect the cuts we are1153seeing in the Federal workforce to impact agency procurements1154and bid protests?1155    Mr. Prince. It remains to be seen. I would not be surprised1156if it starts causing delays in certain agencies. I know it is1157already causing delays in contract awards in some agencies and1158that this may have a trickle effect into an increased number of1159bid protests. The data next year I think will be very1160interesting to see.1161    Ms. Norton. It is clear that this Administration is not1162making the procurement system more efficient and transparent.1163In fact, it is doing the opposite. Congress must do everything1164we can to protect the capacity of our Federal workers as well1165as the integrity of the procurement process.1166    And I yield back.1167    Mr. Sessions. The gentlewoman yields back her time. Thank1168you very much.1169    We now move to the distinguished gentlewoman, Dr. Foxx. Dr.1170Foxx, you are recognized for 5 minutes.1171    Ms. Foxx. Thank you, Mr. Chairman. And I thank our1172witnesses for being here.1173    This is a question for each of the witnesses. And I do have1174several questions, so I will ask you to be as succinct as1175possible.1176    Under current law, bid protests may be filed in one of1177three venues: the GAO, the contracting agency itself, or the1178U.S. Court of Federal Claims, COFC. However, the data shows1179that most protests are filed with the GAO or an agency but not1180with the COFC. Why is this the case, and what are the1181implications of this, quote, venue shopping?1182    We will start here. Mr. Patton?1183    Mr. Patton. We do not actually have data to determine why1184individuals shop or move between forums. And, as I mentioned1185earlier, one of the benefits of the GAO system is that you get1186an automatic stay of contract performance. That is an easy way1187to stop. If you go to the court, you may have to litigate that.1188    Ms. Foxx. Okay. Mr. Prince?1189    Mr. Prince. Yes. One advantage of GAO is the agency is1190still in charge of the way the protest proceeds. So, if there1191is corrective action to be taken, they might take it quicker.1192But the record also is more truncated. So, you might just go to1193the court if you think you are going to get piecemeal record1194and you really need something bigger.1195    Mr. Yukins. Ma'am, Mr. Prince alluded to this before, but1196in response to the study that GAO is doing under section 885 of1197the Defense Authorization Act, GAO asked the bar how much it1198cost to--for an awardee to defend a protest. As Mr. Prince1199alluded to, it is--the data, it is very gross, it is very high1200level. It is not enormously precise, but it was about $100,0001201with GAO and about $200,000 with the Court of Federal Claims.1202    So, a contractor is facing twice as many costs if they1203decide to go to the Court of Federal Claims. And that is one of1204the major reasons that they decide to go to GAO instead.1205    Ms. Foxx. Okay. I understand the lack of data, but you just1206mentioned the cost. Is there any data to tell us whether there1207is a more favorable outcome at one of those places than1208another?1209    Mr. Yukins. The best outcome--there has been academic1210studies on this, ma'am, that the best outcome is actually not1211to win a protest, because if you win a protest, you actually--1212at that point, the agency is so angry at you that you are not1213likely to win the contract.1214    Ms. Foxx. Right.1215    Mr. Yukins. The best outcome is to come in hard and strong1216at GAO and get corrective action taken by the agency. That1217statistically is the--that is the optimal outcome.1218    Ms. Foxx. Okay. I am going to submit my next question for1219the record.1220    Mr. Prince, what information would be helpful for1221contractors, particularly small businesses, to understand the1222merits of a potential bid protest?1223    Mr. Prince. So, I think the most effective thing to do1224would be to provide a unredacted source selection document;1225that is, a document providing to outside counsel or to in-house1226counsel, under protective order or nondisclosure agreement,1227clear information on the deliberative process.1228    Ms. Foxx. Transparency is always good.1229    In your opinion, if Federal Government were to provide1230additional information to bid protesters, such as enhanced1231debriefs, would the number of frivolous bid protests decrease?1232    Mr. Prince. I think generally, yes. And I think that is1233part of why it has gone down over the last decade.1234    Ms. Foxx. And again, I will ask this question of all three1235of you. If we do not have time, then I will ask you submit your1236answers for the record.1237    What are your suggestions for bid protest reforms that can1238reduce costs to frivolous protests, and how can these reforms1239ensure that legitimate protests are allowed to proceed? Mr.1240Patton?1241    Mr. Patton. I would say that the agencies need to collect1242data and determine whether or not they think a protest is1243meritless or not and provide that data to the Congress.1244    Ms. Foxx. Mr. Prince?1245    Mr. Prince. I think greater access to information at the1246outset to potential protesters.1247    Mr. Yukins. I agree in terms of enhanced debriefings.1248    One of the important things to understand, ma'am, is that1249ours is a very concentrated system. We have a concentrated1250Defense Department, very concentrated market. The bar, there is1251only--in Hungary, they have 2,000 procurement lawyers. In the1252United States, at the Federal level, we only have about 500. It1253is not because the Hungarians are smarter. It is because we1254work as a very tight community, and people act very responsibly1255as a result.1256    So, if we had more information through debriefings,1257responsible, well-trained lawyers will be working with1258responsible, well-trained contractors and they will decide not1259to protest.1260    Ms. Foxx. Thank you, Mr. Chairman. I yield back.1261    Mr. Sessions. Thank you very much. The distinguished1262gentlewoman, Dr. Foxx, yields back her time.1263    I would now yield myself such time as I may consume.1264    I want to thank each of you for being here today. I found1265this process that I had to go through as a Subcommittee1266Chairman most informative, because I think the gentleman, Mr.1267Patton, alluded to conversations, thinking that people have,1268perceptions that they may even express without enough1269information to satisfy a balanced answer.1270    And I have attempted, with each of you, to ask questions1271that enabled you, allowed you, and provided you a chance to1272respond back, and each time, I have found that all three of you1273provided a balanced answer back that said the system1274understands this, the system takes this into account, and the1275system is flexible enough to be able to produce what might be a1276balanced answer. And I want you to know that the American1277people have a lot to learn about what you have provided me1278today.1279    I think that the important part that I have learned out of1280this--or perhaps in my interaction with you, because I talked1281to all three of you about it, is the ability to make sure that1282we teach to agencies their responsibilities. And that you have1283all told me that, based upon the effectiveness of an agency to1284guide those people through a process, not only how it will1285happen but what those expectations are, produces a better1286result where, even if a person does not win a bid process, they1287understood more about the facts and factors related to that.1288    Secondly, in discussing, at least I think with Mr. Prince,1289I began--and perhaps it was you, Professor--gave me a feeling1290to understand that if there is an open ability to add a protest1291in when they learn back, as a result of the announcement,1292feedback from the agencies about how decisionmaking took place.1293    And I felt like that that was one of the more important1294aspects that I learned; that it is not just one and done, but1295actually there is some period of time where both sides or three1296sides that could consider the answer that happened, and if some1297extraneous information appeared, it could be considered. And I1298thought that that was very important, because an agency may1299render a decision about their decision that maybe was or was1300not factually understood by both sides.1301    And so, I found that the process that GAO was following to1302be not only fair, but I found it, as has been alluded to here,1303a closed group of people or a group of people that were smaller1304in size that understood the rules. It was not a surprise. And1305they knew what was available to them to fight, to brief, and to1306provide feedback on a fair and timely basis.1307    So, I really have learned a lot from this. I think I can1308defend--as the Subcommittee Chairman for Government Operations,1309I think I can fairly say that both sides, three sides, whoever1310is making the bid, will be dealt with fairly. There is a review1311process that would be done by experts who, as we might say from1312Ms. Norton, would be accomplished on a fair basis and would be1313done in the best interest of not just the taxpayer but a1314process that would be well understood.1315    So, I want to thank each of you for being here. I want to1316recognize that each of you have taken your own personal time to1317appear before this Subcommittee. You have done so in a1318distinguished fashion. And I offer wholehearted support for1319you.1320    We have--Mr. Frost is now here. You know what? I started on1321my closing statements. I would like to move back and to1322recognize the distinguished gentleman from Florida who was here1323earlier and I did not know was here. The gentleman is1324recognized for 5 minutes.1325    Mr. Frost. All good. Thank you so much, Mr. Chair. And1326thank you so much to our witnesses for being here.1327    You know, our witnesses have made the point that the bid1328protest process can help make the Federal contracting process1329fair and transparent, which is obviously very important.1330Unfortunately, there has been a large absence of fairness and1331transparency, especially with the current Administration. And I1332really want to focus in and to talk about what the absence of1333fairness and transparency would mean for the true funders and1334true clients of these contracts, which are our constituents and1335the American people.1336    Professor Yukins, are there examples from outside the1337United States where businesses lack the ability to challenge1338government contracting decisions?1339    Mr. Yukins. Yes, sir. The most profound example was in1340South Africa under Jacob Zuma, when Jacob Zuma and the Gupta1341family were able to seize control of actually a small part of1342the overall procurement system in South Africa, but they1343delegitimized the entire young democracy in South Africa as a1344result. A lot of what you see from President Ramaphosa now in1345his response--his aggressive response against corruption is1346because of what they did, what Jacob Zuma and the Gupta family1347did in procurement. So, when a procurement system collapses, it1348affects the entire government.1349    Mr. Frost. What has that meant for the results of those1350contracts and the people of those countries' return on the1351investment?1352    Mr. Yukins. What is meant is that it--for South Africa, for1353example, is now revamping their procurement system1354dramatically.1355    I think in our own country here, as we are moving forward,1356it will be important for there to be, as you say, as much1357transparency as possible in order to keep, so--a concrete1358example, and something that I know is very important to you, is1359the detention centers that are likely to be--that is--the1360detention centers have been a classic example of private1361capital being used aggressively by the Federal Government to1362put facilities in place.1363    And if those detention facilities are not procured using1364transparent processes that set standards as to what the1365detention facility should look like based on the contracts,1366then there could be very serious ramifications across the1367government.1368    Mr. Frost. Yes. I am really happy you brought this up1369because it is something I wanted to talk about.1370    You know, about a week and a half ago, I did a tour of1371this--what I would call an internment camp, but it is an1372immigrant detention center in the middle of the Everglades in1373the State of Florida, being operated by the Florida Division of1374Emergency Management, which is tasked with keeping our people1375safe during a hurricane. And they are spending about $4501376million of the $500 million cap that they can spend to prepare1377for hurricanes on the detention center.1378    So, hurricane comes up in the Gulf tomorrow, barreling1379toward Florida, they have to go back to the legislature and1380spend time doing that instead of taking care of the people of1381our state, but that is a whole other thing.1382    I want to talk about the lack of transparency and fairness1383we are seeing in this because I do not want to see this1384exported across the country. The most recent example is this1385Everglades facility. Here are some examples. CDR Health, which1386has donated about $4 million to Republicans in Florida over--1387and over half a million dollars to Florida Governor Ron1388DeSantis a few months ago, won a $17.5 million contract for1389this specific facility. IRG Global, which has given $400,000 to1390Governor DeSantis and the GOP, including $10,000 to the Florida1391GOP just hours before they were awarded a $1.1 million contract1392for this immigrant detention center, they are running the camp1393operations. And they got another $5 million contract later in a1394few weeks after that.1395    None of these businesses hired to build, staff, and run1396this immigrant detention facility have any prior experience1397with immigrant detention centers and no prior experience with1398anything in corrections facilities or anything around that.1399    This is costing us eight to ten times what it usually costs1400to house a typical inmate. And I would like to enter into the1401record, unanimous consent, this article from the Orlando1402Sentinel.1403    Mr. Sessions. Without objection.1404    Mr. Frost. Yes. It is ``Florida's disaster pipeline funnels1405millions to politically connected contractors.''1406    Look, I mean--and I do not care what party you are in--this1407is something we should all--and I do not care what your1408politics are. This is something that should worry all of us1409when, in the State of Florida, the money set aside to protect1410us from hurricanes is being used for a--what I would say is a1411politically motivated promise in this mass deportation thing.1412    But not even just that, but the money that is being awarded1413to these contractors is not being done in a transparent way. It1414is completely bypassing the typical process you go to, to have1415a contractor in the State of Florida. And then it is seemingly1416going to people who have donated millions and millions of1417dollars to the guy making the decisions.1418    And so, this is something that should be on the mind of all1419people across the country and every Floridian, especially as we1420talk about procurement and as we talk about third-party1421contractors.1422    Thank you, and I yield back.1423    Mr. Sessions. The gentleman yields back his time. Thank you1424very much.1425    So, without objection, all Members have five legislative1426days within which to submit material and additional written1427questions for the witnesses, which would be forwarded to you.1428    If there is no further business, without objection, the1429Subcommittee stands adjourned.1430    [Whereupon, at 11:20 a.m., the Subcommittee was adjourned.]