GAO Bid Protest Process

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If a company believes the federal government failed to comply with the terms of a solicitation (i.e. IFB, RFP, RFQ, etc.), or applicable laws or regulations in a procurement, the company must follow strict rules or face losing the right to protest. A protest is a legal challenge to the actions of the government during the procurement phase, including the evaluation of bids/proposals and the award of a contract. The how, when, and where of protests are controlled by various laws and regulations.  

There are three basic venues for protesting. A company may choose to file a protest directly with the procuring agency, it may file with the General Accountability Office (GAO), or it may file with the Court of Federal Claims (COFC). Which venue is best will depend upon various facts. Basic considerations include the value of the procurement to your company, the cost of pursuing a protest in the particular venue, whether the protest would be timely in the venue (i.e. a protest that is untimely in the GAO may be timely in the COFC), and whether the protest will involve information that requires a protective order (i.e. competitive information is limited to the attorneys, and not disclosed to the companies involved). Most protests are filed with the GAO, so this primer will focus on the GAO protest process.  

How many days you have to file a protest will depend. In general, if a protest is based on an obvious problem with the solicitation documents, the protest must be filed before the due date for bids or proposals.  The purpose of this rule is to prevent a contractor from sitting on their rights to challenge what they believe to be an unfair solicitation, rolling the dice to see if they win, and then, if unsuccessful, filing a protest.  

The time requirements for other protests, such as a challenge to the government’s decision to award to another company, will depend on the venue as well.  At the GAO, a protest must be filed within 10 days after the basis for the protest is known or should have been known. If a debriefing is requested, and the government is required to provide the debriefing (i.e. negotiated procurement under FAR Part 15), then the protest may be filed within 10 days after the debriefing.  

However, there are benefits to filing even earlier. An automatic stay (i.e. the government is required to withhold award and suspend contract performance) is available if the protest is filed with the GAO within 5 days of the offered mandatory debrief date or within 10 days of contract award. A stay of performance can be key since it can impact your remedy. Without the stay, the contract will continue to be performed and there may not be any contract requirement left to award to you even if your protest is successful.  

Once your protest is filed with the GAO, the agency has 30 days to provide the agency report (AR). The AR will include documents responsive to your protest arguments, including documents specifically requested in your protest. The AR will include a statement by the contracting officer regarding the grounds of protest, as well as a legal memorandum from the agency’s lawyer. Basically, the AR will show what the agency actually did during the procurement process, which may bolster the initial protest or provide additional grounds of protest. Sometimes the agency refuses to provide certain requested documents, and the dispute has to be settled by the GAO attorney assigned to the protest.  

The agency or an intervening awardee may request that all or part of your protest be dismissed. Such requests by the agency or intervenor are often based upon arguments of timeliness, standing, ripeness, and lack of prejudice. If a request for dismissal is filed, the protestor will have to file a response opposing the request. If a dismissal request is submitted, it is often before the 30-day deadline for filing the AR.  

Once the AR is provided, the protestor has 10 days to file comments responding to the agency’s arguments. If the protestor fails to address any ground of protest in its comments, the GAO will deem the omitted ground as abandoned by the protestor.  

In addition to comments, a protestor often discovers additional grounds of protest upon reviewing the AR. These additional grounds of protest have to be filed within 10 days of receiving the AR (i.e. within 10 days of knowing the basis for the protest ground).  The agency will be required to file a supplemental AR in response, and the protestor will have to file supplemental comments. The process for supplemental protests is truncated (e.g. the GAO may require the supplemental AR to be filed within 10 days, instead of the 30 day period allotted for the initial AR).  

The agency may take corrective action at any point in the process. Corrective action by the agency is a recognition by the agency that they failed to comply with some part of the procurement process, and they are therefore correcting that mistake. The agency has wide discretion in the form of corrective action, and it often includes reevaluation of proposals or amendments to the solicitation. If the agency takes corrective action, the GAO will dismiss as moot the portion of the protest related to the corrective action.  

The GAO will issue its decision within 100 days of the filing of the protest. The GAO may deny or sustain the protest, in whole or part. If the protest is sustained, the GAO will direct the agency to remedy the problem. If the GAO denies a protest, the protestor may refile the protest with the Court of Federal Claims.  

Understandably, clients often want to know the likelihood that their protest will be successful. The likelihood of success or failure is fact specific to each protest. Moreover, many successful protests are based upon the supplemental protest, which is information not available to the protestor until the AR is filed. Statistically, however, the GAO has reported that between Fiscal Years 2016 to 2020 the effectiveness rate of protests ranged between 44% to 51%.  That means that nearly half of the protests filed result in the GAO sustaining the protest or the agency taking corrective action to remedy the mistakes cited in the protest.  

You should promptly speak with an experience government contract attorney at BCTW if you believe the government has not abided by the terms of a solicitation, or applicable laws and regulations. Timely guidance and evaluation of your protest is important to meeting the stringent requirements for protesting.

Contact us at (202) 609-7386 or via the contact form for a free consultation.