- Posted on: May 21 2021
As explained previously, various forums have jurisdiction or authority to hear bid protests: agencies, the U.S. Accountability (GAO), and the U.S. Court Federal Claims (COFC). Click here for further information on where to file. Click here to learn about filing an agency level protest. Here we will discuss GAO bid protests, some procedural considerations, and a few of the advantages of using this forum over agencies or the COFC. Dunlap Bennett & Ludwig’s team of bid protest attorneys are highly experienced and are ready to advocate on your behalf.
Formed in July 1921, GAO (previously known as the Government Accounting Office) is an independent, non-partisan agency that works for Congress. GAO is referred to as the “congressional watchdog” and possesses various powers, including that of hearing bid protests. Through the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. §§ 3551-3553, GAO is granted authority to hear bid protests. Since that time, GAO has developed into the main forum for bid protests and as such, has developed a wealth of guidance and case law that helps serve as a framework for other protest forums, and provides a uniform body of law relied on by Congress, courts, contracting agencies, and the public. GAO’s “Bid Protests at GAO: A Descriptive Guide,” May 2018 (Tenth Ed.) offers additional guidance and explanation regarding GAO’s bid protest function.
GAO’s bid protest rules are set forth in 4 C.F.R. Part 21. Only an “interested party” has standing and may file a protest at GAO. CICA and the GAO bid protest rules define an “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” Prospective bidders or offerors and actual bidders or offerors fall into the “interested party” definition, with exceptions.
Procedurally, all bid protests filed at GAO must be filed through the GAO’s Electronic Protest Docketing System (EPDS) and require a $350 filing fee. See 4 C.F.R. § 21.1(b); https://www.gao.gov/legal/bid-protests/file-a-bid-protest. While a protest to GAO is an informal letter that demonstrates prejudice, there are some specific requirements. The GAO rules require protests to include:
- The name, street address, email address, and telephone and facsimile numbers of the protester,
- Be signed by the protester or its representative,
- Identify the agency and the solicitation and/or contract number,
- Set forth a detailed statement of the legal and factual grounds of protest including copies of relevant documents,
- Set forth all information establishing that the protester is an interested party for the purpose of filing a protest,
- Set forth all information establishing the timeliness of the protest,
- Specifically request a ruling by the Comptroller General of the United States, and
- State the form of relief requested.
Protesters can also include requests for a protective order, specific documents, and a hearing. 4 C.F.R. § 21.1(d).
The complicated rules governing the time within which a GAO protest must be filed cannot be stressed enough. The timing is tricky and subject to numerous exceptions. Failure to meet the deadlines can waive your right to file a protest at GAO or your right to the automatic CICA stay. There are essentially two different timelines – one to establish jurisdiction, and one to invoke the automatic CICA stay. It is possible to file a protest that is timely for GAO jurisdiction – that is GAO will hear the protest – but not timely to take advantage of the automatic CICA stay.
For GAO jurisdiction, a pre-award protest, such as one objecting to the terms of the solicitation, must be filed before bid opening or the time set for submission of initial proposals. A pre-award protest where a protester has been excluded from the competitive range, however, is more complicated. There, the protester must timely request a debriefing and then file a protest within ten (10) days of the debriefing date first offered to the protester. There are exceptions and slightly different rules when the government delays the pre-award debriefing. On the other hand, to establish GAO jurisdiction in a post-award protest, the protest must be filed within ten (10) days of when the offeror knew or should have known the basis for protest. Those deadlines can be extended where there is a requested and required debriefing.
For the automatic CICA stay, however, the rules vary based on the Federal Acquisition Regulation (FAR) part (e.g., FAR Part 8, FAR Part 15, or FAR Part 16) under which the procurement is conducted. When a pre-award protest is timely received under these deadlines, the agency may not award a contract after receiving timely notice of the protest from GAO. When a post-award protest is timely filed, in general, contract performance must be suspended immediately when the agency receives notice of a protest from GAO within ten (10) days of contract award, or within five (5) days after the date offered for a requested and required post-award debriefing, whichever is later. Again, the timeliness depends on the FAR part used to conduct the procurement. Moreover, the automatic stay can only be triggered by notice from GAO to the agency.
Unlike an agency level protest, upon request, GAO will issue a protective order to prevent public disclosure of a company’s proprietary or confidential information and the agency’s source selection sensitive information that may be produced during the protest.
This brings us to the remedies available to GAO. Any procedural issues provide GAO ample grounds to dismiss a protest on all or part of the grounds. If, for example, a protester presents three grounds of protest, but only one is based on more than mere suspicion or innuendo, GAO may dismiss the other two grounds. Or, if the protester cannot establish itself as an “interested party,” GAO will dismiss the protest. Or, if the protest is not timely filed within the GAO jurisdiction requirements, GAO will dismiss the protest.
Assuming the bid protest has been timely filed, the protester is an interested party, and the protest document itself includes all of the required elements outlined in 4 C.F.R. § 21.1(c), GAO has several options for a remedy. GAO’s remedies are referred to as “recommendations” to the agency.
Like at the agency level, the most obvious option is to deny all or some of the grounds of protest. For those protest grounds that are not dismissed or denied, GAO will sustain the protest on that basis and then issue “recommendations” to the agency regarding how to remedy the issue(s). These recommendations to the agency can include, but are not limited to requesting revised bids or proposals and then re-evaluating and making a new award decision, amending the solicitation to fix the problem, opening discussions, re-evaluate bids or proposals based on GAO’s guidance, refraining from exercising options under the contract, terminating the contract, issuing a new solicitation, etc. In some instances, GAO also recommends the cost of filing and pursuing the protest.
There are some advantages to GAO protests over the other forums. The most important being the automatic CICA stay that lasts during the pendency of the protest, or generally 100 days (sometimes GAO speeds up its decision) and prevents award or performance during the protest. GAO also allows for a forum of discovery in that protester’s outside counsel admitted to a protective order can review the agency evaluation documents and award decision. GAO protests are relatively inexpensive, especially when compared to the COFC. And, as GAO is the main forum for bid protests, GAO has developed a wealth of case law and expertise in adjudicating these disputes.
Dunlap Bennett & Ludwig’s team of bid protest attorneys are highly experienced and are ready to advocate on your behalf.
If you believe you may have a bid protest issue, contact us by calling 800-747-9354 or by emailing firstname.lastname@example.org. We can help you assess the issues and determine if filing a bid protest is right for you.
To learn more about bid protests, visit our Bid Protest Lawyer page.
To learn more about bid protests, click here, or contact our Government Contracts partner lead below:
Mary Pat Buckenmeyer is a partner at Dunlap Bennett & Ludwig. Mary Pat’s practice focuses on government contracts area with clients ranging from large defense contractors to small start-up contractors.
Mary Pat’s government contracts law experience includes a range of issues, including contract claims and disputes, compliance, counseling, requests for equitable adjustment, small business issues, size protests and appeals, Freedom of Information Act matters, contractor responsibility and integrity issues, prime-subcontract disputes, teaming agreements, joint venture agreements, non-disclosure agreements, and review of prime and subcontracts, contract terminations and settlement proposals, debarment and suspension, cost and pricing issues, and overseas contracting.
To learn how Ms. Buckenmeyer can assist with your legal needs, click here.
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