What's Involved in a GAO Protest?
The following discussion is
intended only as a summary overview of GAO protest procedures. Anyone
actually filing a GAO protest should consult and carefully follow
the full text of the GAO's bid protest regulations.
[EDIT--April 2, 2018: Please note that two
years after it first announced the contemplated system, the GAO
finally has published
a final rule, effective May 1,
2018, establishing its new mandatory electronic filing and
document dissemination system for the
filing of GAO bid protests, including a new, required $350
filing fee. The rule also includes other significant
revisions to the GAO's bid protest regulations, including, among
clarifications of: (i) the time for filing protests if the basis
for a protest of a solicitation impropriety becomes known when no closing time has
been established or when no further
solicitation submissions are anticipated; (ii) when the
agency is required to respond to a protester's request for
documents; (iii) the ability of a party to request relevant
documents not in the agency's possession; and (iv) the
generation and handling of protected and redacted documents.
These are significant changes, and I urge everyone to become
familiar with them before the effective date because, as we all
know, it is difficult enough meeting the tight time frames of a
protest without having to learn a new system at the same time.
The new system, when implemented, will supersede the
current filing methods described below.]
What may be protested? (4 C.F.R. § 21.0)
Generally, you may protest:
Any of the terms of a federal agency's solicitation of offers for a contract for goods or services;
The cancellation of such a solicitation;
A contract award or proposed award resulting from such a solicitation; or
The termination of such a contract award, if the protest alleges that the termination was based on improprieties in the award of the contract.
What specific issues are most often protested?
Following are some of the most common grounds for protests (each linked to an example of a successful GAO protest involving that allegation)
The solicitation is defective
The agency's evaluation of bids or proposals was improper
Is there anything that cannot be protested? (4 C.F.R. § 21.5)
Lots of things, actually. The GAO will not hear protests concerning:
Disputes over the administration of an ongoing contract.
Small business size and eligibility issues and the appropriate NAICS code for a solicitation (all of which are handled by the SBA).
Referrals made to the SBA regarding the Certificate of Competency program, except for protests that show possible bad faith on the part of government officials or that present allegations that the SBA failed to follow its own published regulations or failed to consider vital information bearing on the firm's responsibility due to the manner in which the information was presented to or withheld from the SBA by the procuring agency.
Procurements under section 8(a) of the Small Business Act.
Affirmative determinations of responsibility by the contracting officer, except for protests alleging that the definitive responsibility criteria in a solicitation were not met and those that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated a statute or regulation.
Alleged procurement integrity violations where the protester failed to report the information it believed constituted evidence of the offense to the federal agency responsible for the procurement within 14 days after the protester first discovered the possible violation.
Procurements by agencies other than federal agencies as defined by section 3 of the Federal Property and Administrative Services Act of 1949 (thus, for example, the GAO does not decide protests of procurements by the Postal Service, the Federal Deposit Insurance Corporation, or nonappropriated fund activities).
The award or proposed award of a subcontract except where the agency awarding the prime contract has requested in writing that subcontract protests be decided pursuant to 4 C.F.R. section 21.13.
Challenges to suspensions or debarments.
Protests asserting that the protester’s proposal should not have been included in the competitive range.
Protests challenging the decision of an agency tender official to file a protest or not to file a protest in connection with a public-private competition.
Who may protest? (4 C.F.R. § 21.0)
Only an "interested party" may protest. An interested party is an actual or prospective bidder on a protested procurement whose direct economic interest would be adversely affected by the protested action. The protester must show it was prejudiced by what it claims is wrong with the procurement, e.g., if the offending solicitation provision or agency action were remedied, the protester would be in a position to submit a responsive, competitive bid or offer or would have a reasonable chance for award.
When must a protest be filed? (4 C.F.R. § 21.2)
Protests against the provisions (wording) in a solicitation itself must be filed (must reach the GAO) before bids or offers are due. If the solicitation was initially unobjectionable, but was made defective by an amendment, a protest must be filed before the next round of bids or offers are due after the offending amendment is issued.
Any other protest must be filed (must reach the GAO) within 10 calendar days of the day the protester learned (or reasonably should have learned) of its grounds for protest, except if the protester made a proper and timely request for a post-award debriefing and a debriefing was required, the protester cannot file the protest prior to the debriefing and, instead, must file it within 10 calendar days after the debriefing is held. If a firm first filed an agency-level protest, it must file its GAO protest within 10 days of the date of initial adverse agency action on its prior protest. If any of these 10 day periods ends on a weekend or federal holiday, the protest must be filed by the next business day that is not a holiday.
What does a protest look like? (4 C.F.R. § 21.1)
No particular form is required. Most protests are letters; some are made to look like a complaint in a law suit.
A protest is addressed to:
Government Accountability Office
441 G Street, NW., Washington, DC 20548
Attention: Procurement Law Control Group.
It may be sent by email to firstname.lastname@example.org
It must identify (i) the protester (name, street address, telephone number, email address, and facsimile number), (ii) the protested solicitation or contract, (iii) the federal agency involved, and (iv) the contracting officer.
It must state why the protester is an "interested party."
It must state why the protest is "timely."
It must state the facts giving rise to the protest and explain the protest grounds, i.e., what the protester believes is legally wrong with the solicitation or the agency's conduct of it and how the protester has been prejudiced by these errors.
It must include (i) a request for ruling by the GAO and (ii) a request for relief, i.e. the specific actions the protester is asking the GAO to recommend in order to redress the problems with the procurement.
Although the agency is required by the regulations to submit a stated list of documents in response to any protest, the protest also may include a request for specific documents or categories of documents, if the protester also includes an explanation why the requested documents will be useful in resolving the protest.
It may request the GAO to issue a "protective order" to limit release of source selection sensitive and proprietary materials (more about this below).
It may request the GAO to hold a hearing (more about this below).
Ideally, it should include any documents it references that may not be among the documents the agency will be required by the regulations to submit in response to the protest.
It must be signed by the protester or its authorized representative, e.g., its attorney.
The protest (including any attachments) must be copied to the address specified in the solicitation for receipt of protests, or, if there is no such designation, to the contracting officer.
What happens after a protest is filed? (4 C.F.R. §§ 21.3, .4, .7, and .9)
The GAO sends out a docketing notice, which (i) identifies the GAO attorney who has been assigned to oversee the protest, (ii) provides contact information, and (iii) sets out a preliminary schedule for the major protest events, i.e., the date for the submission of the agency's report in response to the protest and the date by which a decision by the GAO is required.
At (or near) the same time as it sends out its initial notice, the GAO usually issues a Protective Order, which (i) provides that source selection sensitive and proprietary documents can only be distributed to those permitted to see them by the order and (ii) describes mandatory procedures for handling and safeguarding all documents for the remainder of the protest. In most protests, it is important for the protester's representative to see the documents under the Protective Order because those documents may include such things as competitors' proposals and the agency's detailed evaluations, which often contain the best evidence in support of the protester's complaints. However, (for obvious reasons) only those who are not engaged in "competitive decisionmaking" can be admitted to the Protective Order, which usually means that officers or employees of the protester cannot be admitted and which is why protests generally are handled by outside attorneys. For a protester, the process can be frustrating after the Protective Order is issued because the protester will know relatively about what is going on. However, the ability to have its representative see, evaluate, and make arguments based on this protected material is often invaluable.
Other bidders may "intervene" in the protest. An "intervenor" may include an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.
If the agency believes that there is some defect in the protest that means all or part of it should be summarily dismissed by the GAO before the agency is required to submit its full report, the agency will file a motion to that effect; the GAO will give the protester a chance to file a response; and then the GAO will decide. The GAO also may raise such issues on its own initiative.
Within 30 days after receiving telephonic notice of the protest from the GAO, the agency files its agency report responding to all the protest grounds that have survived after any previously-filed motions for summary dismissal.
At the request of any party to the protest (or own its own initiative), the GAO may hold a hearing on some or all of the protest issues. The decision to hold a hearing and its timing is purely at the GAO's discretion, but if it is held, it is often scheduled shortly after issuance of the agency report. At the hearing, the GAO may receive testimony from witnesses from the agency and/or the protester and, generally, the agency, the protester, the intervenor(s), and the GAO all may question any witness. Transcripts of the hearing are prepared and sent to the participating parties.
Within 10 days of receiving the agency report, the protester files its reply to the report (unless the GAO has decided to extend this response date because, for example, a hearing has been held in the interim, in which case the protester will file comments on both the report and the hearing).
The GAO issues its decision within 100 days of the date the protest was filed.
What else might happen during a protest? (4 C.F.R. §§ 21.10-.11)
If the GAO decides that a particular protest is suitable, it may handle the protest under the "express option," which generally shortens the time periods mentioned above and results in a decision within 65 days.
The GAO often holds periodic status conferences to resolve arguments, to narrow or refine the issues, to grant time extensions and schedule events, or to implement flexible procedures or alternative dispute resolution techniques to resolve all (or a portion) of a protest. Sometimes, (like a judge might do) the GAO will provide the parties with an informal briefing as to how it sees the issues at that point and the strengths and weaknesses of each party's position, in order to encourage the parties to reach some resolution prior to the issuance of a formal recommendation by the GAO.
The protester might request additional documents (or even file a supplemental protest) if it learns of these documents or new protest grounds during the course of the original protest. The timeliness rules above apply to supplemental protests.
If a protest concerning the same subject is filed in federal court, the GAO will dismiss its protest, unless the federal court specifically requests the GAO to provide an advisory opinion on the protest.
What can the GAO do if it agrees with a protest? (4 C.F.R. § 21.8)
The GAO may recommend that the agency (i) refrain from exercising options under a contract; (ii) terminate the contract; (iii) recompete the contract; (iv) issue a new solicitation; (v) award a contract consistent with statute and regulation; (vi) reimburse the protester its bid and proposal costs and/or attorney and expert fees incurred in pursuing the protest, and/or (vii) do just about anything else the GAO believes is necessary to remedy the situation.
What happens to the procurement while the protest is pending? (4 C.F.R § 21.6)
If, before award, the agency receives notice from the GAO that a protest has been filed, the agency may not make an award while the protest is pending unless the head of the procurement activity makes certain specific determinations in writing. If, within 10 calendar days after the actual date of award or within 5 days after a required debriefing, the agency receives notice of a protest from the GAO, the agency should suspend contract performance during the pendancy of the protest unless the head of the procuring activity makes certain specific determinations in writing. The law allows the GAO one day to notify the agency of a protest. Therefore, if you want the procurement to stop during the protest, you should file the protest with the GAO in a shorter time than the normal time limits discussed above, in order to make sure the agency will receive the required notice from the GAO in time to stop the procurement.
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