A Procedural Guide To The GAO Protest
Contractors in search of redress over a procurement’s solicitation methods or award may contest an agency’s actions through a bid protest. At the federal level, there are three jurisdictions for protests: the agency, the Government Accountability Office (GAO), and the Court of Federal Claims (COFC). A party may protest to any of the three forums, each of which has its own rules of procedure. This article will provide an overview of the bid protest process at the GAO.
The rules governing protests to the GAO require that the entity bringing the action be an “interested party.” This term means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract. An interested party may protest the following to the GAO: 1) the solicitation or other request for offers for the procurement of goods or services, 2) the cancellation of such solidification or other request for offers, 3) the award or proposed award of a procurement, and 4) the termination of a contact, if the termination is based on improprieties in the award.
A GAO protest can be pre or post award. To contest an impropriety in the solicitation, the protestor must file its complaint before the bid opening or the time established for receipt of proposals. In all other cases except negotiated procurements, the bid protest must be filed no later than ten days after the basis of the protest is known or should have been known. In the event a protest is made at the agency level first, the protestor has ten days after learning of the adverse decision by the agency to protest to the GAO.
A protest must be in writing, signed by the protestor or its representative, and contain certain elements such as an explanation of timeliness, that the protestor is an interested party, contact information, the legal and factual bases of the protest, information on the procurement, and a request for relief. The filing must be served on the contracting officer within one day of filing with the GAO.
Unless summarily dismissed, the GAO will notice the awarding agency of the protest, which triggers the agency’s requirement to notice all potential intervenors. Other interested parties may be allowed to participate in the protest by petitioning for permission to do so and upon approval filing an appearance. Upon notice from the GAO the agency will also issue an automatic stay of the procurement, provided the agency received such notice within ten days after it awarded the contract or within five days of a debriefing, whichever is later. The stay will prevent the agency from making an award or suspend performance on a contract already awarded. The agency can make an exception to the automatic stay if urgent and compelling circumstances exist and a determination is made that moving forward is in the best interests of the United States.
The agency then has thirty days to provide its response to the protest in the form of an agency report, which includes the contracting officer’s statement, a memorandum of law, and copies of all relevant documents. If a protective order has been issued, the protest file is limited to attorney eyes only and cannot be shared with the protestor. Intervenors also receive copies of the agency report (subject to any protective order). The protestor then has ten days to respond to the agency report; if no response, GAO will dismiss the action.
Provided there is no hearing, which can be requested by any party, after response to the agency report, GAO has one hundred days to issue a decision (unless the protest is fast tracked). If sustained, GAO will recommend the agency pay any costs incurred by the protestor associated with bringing the complaint, including attorney’s fees. If denied or the agency takes corrective action, GAO likely will not recommend reimbursement of costs.
Once adjudicated, a request for reconsideration may be presented to the GAO within ten days after the basis for reconsideration is known or should have been known. The losing party may also appeal the decision to the COFC where review will be de novo (i.e. of the agency’s decision; not the GAO decision).
Kristi Morgan Aronica, Attorney