- Posted on: Oct 31 2022
By: Mary Pat Buckenmeyer [11/2/22]
We have previously discussed common grounds of protest. But this leads to the question, are there issues that GAO will not consider? The simple answer is yes. This blog explores those issues.
Issues GAO Will Not Consider:
GAO’s Bid Protest Regulations at 4 C.F.R. § 21.5 enumerate a list of issues that GAO will not consider. The following provides a sample of the more common issues:
- Contract administration.
- Small Business Administration issues.
- Affirmative determination of responsibility by the contracting officer.
- Procurement integrity.
- Protests not filed either with the GAO or the agency within the required time limits.
- Protests that lack a detailed statement of the legal and factual grounds of protest or that fail to clearly state legally sufficient grounds of protest.
- Procurements by agencies other than Federal agencies, protests of procurements or proposed procurements by certain agencies such as the U.S. Postal Service, the Federal Deposit Insurance Corporation, and non-appropriated fund activities.
- Protests of the award or proposed award of a subcontract.
- Challenges over a contractor’s suspension or debarment.
Exceptions to the Rule:
In certain circumstances, the issues listed above can be considered by GAO. For example, GAO’s Bid Protest Regulations specifically state GAO will not review protest grounds against the contracting officer’s finding of affirmative responsibility determination for the awardee. GAO considers the issue of responsibility to be typically a matter within an agency’s broad discretion. That discretion, however, is not unlimited. There are some instances where GAO has carved out exceptions to this general rule. GAO will review a challenge to an agency’s affirmative responsibility determination where the protester presents specific evidence that the contracting officer ignored or overlooked and that, by its nature, would be expected to have a strong bearing on whether the awardee should have been found responsible. Examples might be where a protester can show the contracting officer failed to consider credible allegations that a contractor committed fraud, had criminal convictions, or where a contractor engaged in improper financial practices and improperly reported earnings.
By way of further example, GAO’s Bid Protest Regulations also state that GAO will not consider Procurement Integrity Act (PIA) violations. The provisions of the PIA state that a person shall not knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. Under the provisions of the PIA, 41 U.S.C. §§ 2101-2107, a contractor must report the possible violation to the agency within 14 days of when the contractor first becomes aware of the possible violation. The purpose of this 14-day reporting requirement is to afford the procuring agency the opportunity to investigate the alleged improprieties before completing the procurement, and if necessary, to take remedial action. Thus, GAO will only consider PIA issues where the protester reports the information it believes constitutes evidence of the offense to the Federal agency responsible for the procurement within 14 days after the protester first discovered the possible violation. See 4 C.F.R. § 21.5(d).
Do you have questions about filing a timely post-award protest? We can help answer those questions and plot your strategies.
Posted in: Government Contracts