Certain provisions concerning bid protest procedures in the Competition in Contracting Act of 1984 (CICA) purport to authorize the Comptroller General (1) to require a procuring agency to stay a procurement until such stay is lifted by the Comptroller General; and (2) to require an agency to pay certain costs of a bid protest, including attorneys’ fees and bid preparation costs. Because the Comptroller General is an agent of the Legislative Branch, the provisions authorizing the Comptroller General to act in an executive capacity to bind individuals and institutions outside the Legislative Branch violate fundamental separation of powers principles.
Although the only unconstitutional aspect of the bid protest stay provision concerns the Comptroller General’s authority to lift the stay, this authority is inextricably bound with the stay provision as a whole. The stay provision is not, however, inextricably bound to the remainder of the CICA, and thus may be severed. Likewise, the provision authorizing the Comptroller General to require an agency to pay certain costs of a bid protest is severable from the remainder of the CICA.
Executive Branch agencies are advised to proceed with procurement processes as though no stay provision exists in the CICA, although agencies may voluntarily agree to stay procurements pending the resolution of bid protests if such action is not based on the authority of the invalid CICA stay provisions. Agencies should not comply with the Comptroller General’s awards of costs under the invalid CICA damages provision.