- Posted on: Aug 10 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 depends based on the forum in which the protest was filed. Previously, we discussed what happens at the agency level. This blog explores what happens at GAO.
In sharp contrast to agency level protests where the entire protest file usually only consists of the protest and the agency decision, at GAO, there is the potential for numerous filings after the initial protest and before GAO’s decision, including (but not limited to) the following, listed by party filing:
- Parties join the case:
- Agency: notice of appearance,
- Intervenor: request to intervene.
- Protective Order:
- GAO: acknowledgement of protest and protective order,
- Protester/Intervenor: applications for access to protected material,
- GAO: admission of the parties to the protective order.
- Partial or Summary Dismiss:
- Agency and/or Intervenor: request for partial or summary dismissal,
- Protester: response,
- GAO: decision.
- Document Production:
- Agency: letter indicating the proposed document production based on the protest grounds and document requests in the protest (called the “5-Day Letter”),
- Protester: any response or objection to the agency’s proposed document production,
- Intervenor: can, but does not have to, file letter in support of agency,
- GAO: decision on any document disputes.
- Agency Response to the Protest:
- Agency: files the “agency report,” consisting of the contracting officer’s statement of facts (COS), the agency’s legal memorandum (LM) responding to the protest grounds, and the relevant documents from the agency’s contract file,
- Protester: supplemental protest based on the agency report and comments on the agency report,
- Intervenor: comments on the agency report.
- If Supplemental Protest Grounds are Timely Raised:
- Agency: supplemental agency report that again includes a COS, LM, and any relevant documents not already produced,
- Protester/Intervenor: comments on any supplemental agency report.
The last two potential filings can repeat one or more times, depending on the case.
The timing of each of these filings is dictated by GAO rules. For example, the rules state that the agency report must be filed within 30 days of the date of the initial protest filing, and any supplemental protest and comments on the agency report must be filed within 10 days. Those rules change for supplemental agency reports, the timing and response to which is dictated by GAO.
Hearings and Alternative Dispute Resolution/Outcome Prediction
GAO conducts hearings in limited instances and may also conduct alternative dispute resolution (ADR). Any party to the protest or GAO may request a hearing. Hearings are fairly rare at GAO. In 2020, for example, a hearing was conducted in only 1% (or 9 cases) of the 2,149 cases. Under the Competition in Contracting Act of 1984, GAO is required to annually report on its bid protest statistics, including hearings. See GAO Annual Reports to Congress.
There are three different types of ADR at GAO: outcome prediction, negotiation assistance, and litigation risk assessment. By far, the most common is outcome prediction, where the purpose is to resolve the protest matter without the need for a substantive written decision on the merits. During outcome prediction, the GAO attorney handling the protest advises the parties of his/her view of the likely outcome of the case after the record has been developed. After the GAO attorney’s view is shared, the parties have a chance to respond. Depending on GAO’s stance, a protester may withdraw its protest, or the agency may take corrective action, and in either instance, the party on the negative end of GAO’s view can avoid an adverse public decision.
The Competition in Contracting Act of 1984 mandates that GAO issue a decision within 100 days of the date of the initial protest filing. GAO reviews whether the agency’s conduct was reasonable and in accordance with the evaluation criteria set forth in the solicitation and the applicable procurement laws and regulations. While GAO’s decisions are recommendations and not binding on the parties, it is rare that an agency does not implement GAO’s recommendations. In those instances where GAO makes recommendations to the agency, the agency is required to report to GAO any recommendations not implemented, and GAO, in turn, reports that to Congress.
Appealing an Adverse Decision
While there is no right to appeal, within 10 days of receipt of the decision, you can request reconsideration of the adverse decision to GAO. Another option is to file a new protest at the COFC on all or some of the protest grounds previously raised at GAO.
Do you have questions about filing an agency level bid 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.
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