- Posted on: Jun 19 2021
A stay of award or performance of a contract simply means the procuring agency cannot award the contract or must stop performance of an already awarded contract during the pendency of a protest. Obtaining a stay is different at each of the three bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC).
The automatic stay provisions of the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § 3553, are often noted as a key advantage for GAO bid protests. But that does not mean a stay cannot be obtained at the agency level or at the COFC. Knowing the differences regarding how to obtain a stay among the three forums is the trick.
Stays for Agency Level Protests
A properly and timely filed agency level bid protest requires the procuring agency to stay the award or performance. For a pre-award protest, the Federal Acquisition Regulation (FAR) states that upon receipt of a protest before award, the agency may not award a contract pending the agency’s resolution of the protest. FAR 33.103(f)(1).
For a post-award protest, the FAR states that upon receipt of a protest filed within ten (10) days after contract award or five (5) days after a debriefing date offered to a protester in response to a timely debriefing request, whichever is later, the contracting officer shall immediately suspend performance pending resolution of the protest. FAR 33.103(f)(3).
In either instance, the agency may override the stay when someone at a level above the contracting officer or another agency official justifies in writing the contract award or continued performance for urgent and compelling reasons or explains why the award or continued performance is in the government’s best interests.
Agencies rarely override the automatic stay given the short time frame for issuing decisions (generally thirty-five (35) days).
A note of caution: While a protester may first file a protest with the procuring agency, pursuing an agency level protest does not extend the time for obtaining a GAO stay.
Stays for GAO Protests
At the GAO, CICA allows for an automatic stay. In terms of a pre-award protest, this means, upon receipt of the notice from GAO of a timely and properly filed protest, the procuring agency may not award the contract. See 31 U.S.C. § 3553(c); see also FAR 33.104(b).
For a post-award protest, upon receipt of a protest from GAO within ten (10) days after the date of contract award or five (5) days after a “required” debriefing date, whichever is later, the contracting officer must suspend contract performance. See 31 U.S.C. § 3553(d); see also FAR 33.104(c).
In either instance, the head of the contracting agency may authorize the award or continued performance based on a finding that the award or performance is in the U.S. government’s best interest or there are urgent and compelling circumstances that significantly affect the interests of the government that will not permit the agency to wait for GAO’s decision in the bid protest. Pre-award, this means the procuring agency cannot wait for the GAO decision and the award is likely to occur within thirty (30) days of the written finding. See 31 U.S.C. § 3553(c)(2)-(3) and (d)(3)(C); see also FAR 33.104(b) and (c).
Stays for COFC Protests
The COFC does not have an automatic stay provision. Sometimes the procuring agency (through the U.S. Department of Justice) will agree to a voluntary stay the award or performance while a protest is pending at the COFC.
In those instances where the agency does not agree to a voluntary stay, a protester still wanting to secure a pre- or post- award stay requires the protester to file an application for a temporary restraining order (TRO) and/or motion for preliminary injunction. Both essentially function the same way – to preserve the status quo during the pendency of the action. To obtain either, a protester show (1) likelihood of success on the merits of the bid protest, (2) irreparable harm to the protester if the TRO or preliminary injunction is not granted, (3) the balance of harms among the government, awardee, and protester is less for the awardee and government, and (4) the TRO or preliminary injunction is in the public’s interest.
The COFC is also the forum that has jurisdiction to hear challenges to an agency’s decision to override the CICA automatic stay, and a protester may file a separate action at the COFC to reinstate a stay while a GAO protest is pending.
Do you have questions about whether you can file a protest and get the procuring agency to stay the award or performance? We can help answer those questions. Contact us by calling 800-747-9354 or by emailing email@example.com.
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.
Tagged with: bid protests
Posted in: Government Contracts