Congressional Inquiry: The GAO is not a court of law; therefore, by what [specific] legal or regulatory authority is it able to establish legal precedent?

Submitted to:
House Oversight and Government Reform Committee
Senate Homeland Security and Government Affairs Committee

I am a small business and government contracts consultant dedicated to helping small firms successfully navigate the federal marketplace. In addition to providing small businesses with guidance on complying with the Federal Acquisition Regulation and other key government contracts rules, my firm, Aljucar, Anvil-incus & Co. prepares and manages teaming, joint venture and mentor-protégé arrangements with large-cap firms. As a result of the above stated, my firm sometimes must defend its interest by GAO bid protest.

SUMMARY OF INQUIRY

The GAO is not a court of law. Therefore, by what [specific] legal or regulatory authority is the agency able to establish legal precedent? [NOTE]: This same inquiry was made to the Office of the Comptroller General on June 3, 2014 without response.

BACKGROUND

The GAO has presumed to create “impromptu” rules to supplement the Code of Federal Regulations (CFR) §21 by virtue of its case precedent. I am requesting your assistance in determining on whose specific authority and/or by what specific law or regulation citation the GAO is able create impromptu rules to supplement the Code of Federal Regulations §21 by virtue of its own legal precedent in doing so. We have combed the laws incepting the agency and those governing its operations, and can find no requisite anywhere in CFR §21 that authorizes GAO attorney’s or management to append regulation and create rules by virtue of legal precedent.

Examples of rule supplements by GAO include the filing of “Motions” and the requirement for “Comments” on an Agency Report during a bid protest proceeding.

MOTIONS – GAO regulations [explicitly] state that [n]o formal briefs or other technical forms of pleadings or motions are required. This is all consistent with Congresses ‘mandate that the Comptroller General “provide for the inexpensive and expeditious resolution of protests” to “the maximum extent practicable.” However, federal agencies consistently file “Motions to Dismiss” during bid protests which are accepted and acted upon by GAO.

COMMENTS – It has been confirmed that there is no federal law or regulation that defines “comments on a report” in the context of a GAO protest by the agency’s Chief Quality Officer, Mr. Timothy Bowling and its Head of Procurement Law, Mr. Ralph White (see attached). However, according to Mr. White:

“The [definition] of “comments on a report” is not based on a specific regulation, but rather on long-standing [legal] precedent in connection with bid protests before GAO.”

The GAO has taken this position despite the agency NOT being a court of law. Indeed, the agency does not employ procedures that include discovery and evidentiary rules; it does not employ appellate review; and, it does not have the power to enforce its judgments.

Therefore I am respectfully requesting to know if this is truly Congress’ intent and if so by what [specific] law or regulation this authority to establish enforceable legal precedent is codified. Your time in consideration and response to this inquiry is greatly appreciated.

Thank you,

Rudy Sutherland

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