- Posted on: Jun 25 2021
After filing and receiving a favorable decision in a bid protest, many protesters wonder what happens as a result of a successful protest. Specifically, protesters always want to know, if I am successful in my bid protest, do I automatically receive the award for the procurement I’ve protested? Unfortunately, the answer is that it’s not that simple. But the remedies available at the three bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) – can lead to the award of the contract.
Agency Level Protest Remedies
Under the Federal Acquisition Regulation (FAR), where the head of the procuring agency determines that the solicitation, proposed award, or award does not comply with the requirements of law or regulation, the agency head may take any action that GAO can recommend (discussed below) and award costs to the protester for pursuing the protest. See FAR 33.102(b).
Practically, this means the agency may take corrective action and/or reopen the competition. What that specifically means for your procurement is fact-driven, meaning that an agency’s remedy will be tailored to fix the issue(s) as they relate to your procurement. Agency remedies include things like:
- Terminating the awarded contract,
- Re-competing the contract,
- Re-evaluating proposals/quotations,
- Conducting discussions on all or parts of proposals/quotations,
- Issuing a new solicitation,
- Amending or modifying any faulty parts of a solicitation,
- Refraining from exercising options under an existing contract,
- Awarding a contract consistent with statute and regulation,
- Any other recommendations that GAO is permitted to advise the agency to implement as necessary to promote compliance with the Competition in Contracting Act of 1984.
In some instances, a protester may also be able to recover protests costs such as attorneys’ fees, copying costs, courier costs, and the like.
GAO Protest Remedies
GAO’s remedies are called “recommendations” for the procuring agencies and are not binding. However, an agency that does not fully implement GAO’s recommendations within sixty (60) days of GAO’s decision must report this failure to the GAO. GAO then must report to Congress the agency’s refusal to implement GAO’s recommendations. See FAR 33.104(g); 31 U.S.C. § 3554(e).
GAO’s bid protest regulations list possible remedies, and GAO may recommend any combination of the following options:
- Refraining from exercising options under the contract,
- Terminating the contract,
- Recompeting the contract,
- Issuing a new solicitation,
- Awarding a contract consistent with statute and regulation, or
- Such other recommendation(s) as GAO determines necessary to promote compliance.
Like at the agency level, GAO’s recommended remedies are fact-driven and take into consideration all circumstances surrounding the procurement. Practically, these recommendations are similar to the agency level remedies listed above, and in some instances, include a recommendation for the award of protest costs such as attorneys’ fees and expenses and/or bid preparation costs.
COFC Protest Remedies
Unlike at the GAO, the COFC’s decisions are binding on the procuring agency and parties to the bid protest. The COFC’s decision can be appealed to the U.S. Court of Appeals for the Federal Circuit. The COFC can:
- Grant equitable relief in the form of temporary restraining orders, preliminary injunctions, permanent injunctions, and declaratory judgments,
- Award reasonable bid preparation and proposal costs, and
- In some instances, award attorneys’ fees and protest costs pursuant to the Equal Access to Justice Act.
Practically, this means the COFC can enjoin the award and order all of the remedies that GAO can recommend.
Do you have questions about remedies at the various bid protest forums? We can help answer those questions and plot your strategies. Contact us by calling 800-747-9354 or by emailing firstname.lastname@example.org.
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