- Posted on: Jun 26 2021
Assuming you have filed a timely bid protest that meets the various procedural requirements at one 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 question becomes “what happens now?” The answer is that it depends based on the forum in which the protest was filed. This blog explores what happens at the agency level.
In sharp contrast to the GAO and COFC, the proceedings before the agency are significantly simpler. At the agency level, generally, a protester files its protest and then awaits the agency’s decision. That’s it; just the two documents make up the entirety of the case: the initial protest and the agency’s decision.
At the GAO and COFC, there are mechanisms that allow relevant documents to be produced, oral arguments, potential witnesses, and responsive filings. At the agency level, no responsive documents are required from the agency, and the protester is not required to file anything beyond the initial protest. Thus, in the normal course of a protest, there is no discovery and no exchanging of arguments. Practically speaking, this means there is no exchange of documents, no argument back and forth, no questioning of witnesses, or other exchange of information. The Federal Acquisition Regulation (FAR) does allow the parties to an agency level protest to “exchange relevant information.” For example, if the agency requires more information or support for a particular protest ground, the agency may reach out to the protester and request that information. Whether this happens is dependent on the facts of the individual protest. In the vast majority of agency level protests, this type of exchange of information is not the norm.
The Competition in Contracting Act of 1984 mandates that GAO issues a decision within 100 days of the date of the initial protest filing. At the COFC, there is no specific time within which the decision must be issued – although the court does pay heed to bid protest concerns and tends to issue a decision on a more expedited basis. Agency level protests offer somewhat of a middle ground. The FAR states that an agency “shall make their best efforts to resolve agency protests within 35 days after the protest is filed.” But that timeframe is not a full and hard-stop rule like the 100-day mandate at GAO.
Appealing an Adverse Decision
An agency’s adverse decision may be “appealed” according to agency-specific procedures or by filing a protest at the GAO or the COFC. In those instances where a protester disagrees with the agency’s decision and files a protest with GAO (within 10 days of the adverse agency action), the filing of the protest at GAO does not extend the time for obtaining an automatic stay of performance at GAO. In practice, that means there is no automatic stay at the GAO if a protester first files its protest at the agency level. That being said, some agencies may voluntarily agree to extend the stay for the duration of the protest at either the GAO or COFC.
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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.
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Tagged with: bid protests
Posted in: Government Contracts