- Posted on: Sep 3 2021
The frustrating answer to this question is: it depends. One of the trickiest aspects in filing a bid protest is the timing of when to file, and pre-award protests are no exception. While the three bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) – each have their own rules, there are similarities but also key differences. And even within each forum, the answer is not always straightforward because not only does timing depend on the forum within which you are filing, the timing also depends on other considerations such as the Federal Acquisition Regulation (FAR) section under which the procuring agency conducted the procurement, the nature of the protest grounds being raised, and differing deadlines for jurisdiction or for a stay of award/performance. This blog only addresses the timeliness deadlines for pre-award protests.
Timeliness for Jurisdiction
At the agency level, GAO, and the COFC, a pre-award protest against any improprieties in the solicitation must be filed before bid opening or the closing date and time set for receipt of proposals or quotations. Sometimes a solicitation defect is not apparent before bid opening or the closing due date and time set for proposal or quotation submission. In those instances, the protest must be filed no later than 10 days after the defect became apparent.
At the agency level and GAO, a pre-award protest against an offeror’s exclusion from the competition must be filed no later than 10 days after the basis of the protest is known or should have been known, whichever is earlier. Practically, this means that a protest on exclusion from the competition must be filed within 10 days of learning of the exclusion or within 10 days of a pre-award debriefing. See FAR 33.103(e) (providing timeliness rules for agency level protests); 4 C.F.R. § 21.2(a)(1) (providing same for GAO protests).
The COFC does not have a strict deadline to protest exclusion from the competition. This does not, however, mean that a protester can sit on its rights. A delay in filing can affect a protester’s ability to show the harm necessary for injunctive relief, and the court can apply the doctrine of laches to find the passage of time, and protester’s delay caused prejudice to the defendant.
Timeliness for a Stay of Award
We have previously discussed obtaining a stay of award here. A protest timely received to establish jurisdiction at the agency level and GAO establishes the timeliness for the stay of award in a pre-award protest. Note, this is not the same for post-award protests.
At the agency level, upon receipt of a timely protest, the procuring agency may not award a contract, pending the agency’s resolution of the protest, unless the contract award is justified, in writing, for urgent and compelling reasons or is determined, in writing, to be the in the best interest of the government. See FAR 33.103(f)(1).
GAO employs similar rules, holding that upon receiving notice of a timely protest from GAO, the procuring agency may not award a contract unless the head of the contracting activity authorizes the award, in writing, based on a finding of urgent and compelling circumstances that significantly affect the interests of the United States, those interests will not permit awaiting the decision of the GAO, and the award is likely to occur within 30 days of the written finding. See FAR 33.104(b).
There is no automatic stay of award at the COFC. Instead, a protester must file an application for a temporary restraining order (TRO). In order for the court to grant the TRO, the protester must show (1) a likelihood of success on the merits; (2) irreparable harm to the protest if the TRO is not granted; (3) the balance of harms will result in greater harm to the protester if the TRO is not granted; and (4) the public interest favors the granting of the TRO.
Do you have questions about filing a timely pre-award protest? We can help answer those questions and plot your strategies. 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.
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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.
To learn how Ms. Buckenmeyer can assist with your legal needs, click here.
Tagged with: bid protests
Posted in: Government Contracts