Positions of the President and the Department of Justice on the Competition in Contracting Act

GAO discussed: (1) the position of the President and the Department of Justice that two provisions of the Competition in Contracting Act are unconstitutional; and (2) the failure of the executive branch to execute them. The provisions were designed to make bid protests a more effective mechanism for enhancing competition. The Attorney General believes that the provisions violate the separation of powers doctrine because they allow the Comptroller General to lift the suspension of a procurement action and to award costs. Since lifting procurement suspensions is an executive power, assigning such a power to the Comptroller General violates the doctrine. GAO maintained that the Attorney General incorrectly believes that the Comptroller General is a legislative branch officer because he is not a presidential appointee; however, he has served both the President and Congress since the 1921 government reorganization designed to prevent him from becoming subservient to either branch. The Comptroller General has implemented the spirit of the provisions since reorganization regardless of specific authority; therefore, legislatively granting him such authority is not a violation of the separation of powers doctrine. GAO concluded that the Attorney General was incorrect in insisting that the provisions are unconstitutional and that the President violated the law by directing executive agencies to ignore it.