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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices
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management systems that ensure that hearing records are easily accessible to appellate adjudicators. Such systems may include the capability for electronic filing.
9. Although the randomized assignment of cases to appellate adjudicators is typically an appropriate docketing method for an agency appellate system, agencies should consider the potential benefits of sorting and grouping appeals on the appellate docket, such as reduced case processing times and more efficient use of adjudicators, staff attorneys, and law clerks skills and time. Criteria for sorting and grouping cases may include the size of a cases record, complexity of a cases issues, subject matter of a case, and similarity of a cases legal issues to those of other pending cases.
10. Consistent with the objectives of the agencys appellate system and in light of the costs of time and resources, agencies should consider adopting an appellate model of judicial review in which the standard of review is not de novo with respect to findings of fact and application of law to facts. For similar reasons, many agencies should consider limiting the introduction of new evidence on appeal that is not already in the administrative record from the hearing-level adjudication.
11. Taking agency resources into account, agencies should emphasize concision, readability, and plain language in their appellate decisions and explore the use of decision templates, summary dispositions, and other quality-improving measures.
12. Agencies should establish clear criteria and processes for identifying and selecting appellate decisions as precedential, especially for appellate systems with objectives of policymaking or inter-decisional consistency.
13. Agencies should assess the value of oral argument and amicus participation in their appellate system based on the agencies identified objectives for appellate review and should establish rules governing both.
Criteria that may favor oral argument and amicus participation include issues of high public interest; issues of concern beyond the parties to the case; specialized or technical matters; and a novel or substantial question of law, policy, or discretion.
Administration, Management, and Bureaucratic Oversight 14. Agency appellate systems should promptly transmit their precedential decisions to all appellate program adjudicators and, directly or through hearinglevel programs, to hearing-level adjudicators as appropriate. Appellate programs should include in their transmittals, when feasible, brief summaries of the decision.
15. Agencies should notify their adjudicators of significant federal court decisions reviewing the agencies decisions and, when providing notice, explain the significance of those decisions to the program. As appropriate, agencies should notify adjudicators if the agency will not acquiesce in a particular decision of the federal courts of appeals.
16. Agencies in which decision making relies extensively on their own precedential decisions should consider preparing or
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having prepared indexes and digestswith annotations and comments, as appropriate to identify those decisions and their significance.
17. As appropriate, agency appellate systems should communicate with agency rule-writers and other agency policymakers and institutionalize communication mechanismsto address whether recurring issues in their decisions should be addressed by rule rather than precedential case-by-case adjudication.
18. The Office of the Chairman of the Administrative Conference should provide for, as authorized by 5 U.S.C. 5942, the interchange among administrative agencies of information potentially useful in improving agency appellate systems. The subjects of interchange might include electronic case management systems, procedural innovations, quality-assurance reviews, and common management problems.
Public Disclosure and Transparency 19. Agencies should disclose on their websites any rules sometimes styled as orders, and statutes authorizing such rules, by which an agency head has delegated review authority to appellate adjudicators.
20. Regardless of whether the Government in the Sunshine Act 5 U.S.C. 552b governs their appellate review system, agencies should consider announcing, livestreaming, and maintaining video recordings on their websites of appellate proceedings including oral argument that present significant legal and policy issues likely to be of interest to regulated parties and other members of the public. Brief explanations of the issues to be addressed by oral argument may usefully be included in website notices of oral argument.
21. Agencies should include on their websites brief and accessibly written explanations as to how their internal decision-making processes work and, as appropriate, include links to explanatory documents appropriate for public disclosure.
Specific subjects that agencies should consider addressing include: The process of assigning cases to adjudicators when fewer than all of the programs adjudicators participate in a case, the role of staff, and the order in which cases are decided.
22. When posting decisions on their websites, agencies should distinguish between precedential and non-precedential decisions. Agencies should also include a brief explanation of the difference.
23. When posting decisions on their websites, agencies should consider including, as much as practicable, brief summaries of precedential decisions and, for precedential decisions at least, citations to court decisions reviewing them.
24. Agencies should include on their websites any digests and indexes of decisions they maintain. It may be appropriate to remove material exempt from disclosure under the Freedom of Information Act or other laws.
25. Agencies should affirmatively solicit feedback concerning the functioning of their appellate systems and provide a means for doing so on their websites.

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Administrative Conference Recommendation 20204
Government Contract Bid Protests Before Agencies Adopted December 17, 2020
Federal law establishes policies and procedures governing how federal executive agencies procure supplies and services.1 The primary source of these policies and procedures is the Federal Acquisition Regulation FAR,2 which applies to all executive-agency acquisitions of supplies and services with appropriated funds by and for the use of the federal government, unless expressly excluded. Other relevant policies and procedures are found in federal statutes and agencies own procurement rules.
If a vendor believes a federal executive agency has not complied with the law or the terms of a solicitation, it may file what is called a bid protestthat is, a written objection to a government agencys conduct in acquiring supplies and services for its direct use or benefit.3 Responding to bid protests can require agencies to reevaluate their procurement processes and, sometimes, make improvements. That, in turn, results in more competitive, fairer, and more transparent procurement processes, benefiting vendors, agencies, and ultimately the public.
To file a bid protest, an actual or prospective vendor must show that it is an interested partymeaning that its direct economic interest would be adversely affected by the award of, or failure to award, the contract in question 4and that it suffered prejudice because of an error in the procurement process. Ordinarily, vendors who meet those requirements may file bid protests in any of three forums: 1 The procuring agency,5 2 the Government Accountability Office GAO,6 or 3 the 1 See Federal Acquisition Regulation, 48 CFR ch.
1; see also Competition in Contracting Act of 1984, Public Law 98369, div. B, tit. VII, 98 Stat. 494, 94285 codified, as amended, in various parts of the U.S. Code; Federal Acquisition Streamlining Act of 1994, Public Law 103355, 108 Stat. 3243;
Federal Acquisition Reform Act of 1996, Public Law 104106, 110 Stat. 186 later renamed the ClingerCohen Act of 1996; Exec. Order No. 12,979, Agency Procurement Protests, 60 FR 55,171 Oct. 25, 1995.
2 See 48 CFR ch. 1.
3 See Admin. Conf. of the U.S., Recommendation 955, Government Contract Bid Protests, 60 FR
43,108, 43,113 Aug. 18, 1995.
4 See 4 CFR 21.0a1 defining interested party for purposes of bid protest proceedings before the Government Accountability Office; 48 CFR 33.101
defining interested party for purposes of bid protest proceedings before procuring agencies;
CliniComp Intl, Inc. v. United States, 904 F.3d 1353, 1358 Fed. Cir. 2018 defining interested party for purposes of 28 U.S.C. 1491b, which covers actions in the Court of Federal Claims.
There are some instances in which Congress has restricted the ability to file a protest, regardless of whether a vendor is an interested party. See, e.g., 41 U.S.C. 4106f limiting the ability to protest the issuance or proposed issuance of a task or delivery order; 48 CFR 16.505a10 same.
5 See 48 CFR 33.103.
6 See 31 U.S.C. 3552a, 3553a. For civilian agencies, GAO has exclusive jurisdiction over protests of task and delivery orders in excess of $10
million, unless the protest is on the grounds that
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