What Can You Protest at GAO?
Under GAO bid protest regulations, and per the Competition in Contracting Act (CICA Stay), if you are the unsuccessful offeror in a government contract bid, you can protest the award if there are alleged illegalities or improprieties in:
- Solicitations or other requests by federal agencies for offers for contracts for goods or services,
- Cancellations of solicitations or other requests for offers by federal agencies,
- Awards or proposed awards of contracts by federal agencies, or
- Terminations or cancellations of contract awards by federal agencies if the protest alleges that the termination or cancellation was based on improprieties in the contract’s award.
- Certificate of Competency and 13 CFR 125 referrals with limited applicability.
GAO Protest Timeline and Filing Deadlines
GAO protests do not require formal briefs for an interested party. However, having a GAO bid protest lawyer can have substantial benefits due to the complex and confusing protest regulations. For a pre-award protest, the protest timeline for filing is no later than bid closing date. For post-award protest, the bid protest timeline requires you to submit your challenge no later than ten days after you knew, or should have known the reason for the protest.
GAO protest letters should:
- Identify the contracting agency and the solicitation or contract number;
- Set forth a detailed statement of the legal and factual grounds of protest, including copies of relevant documents;
- Establish that the protester is an interested party making a timely protest; and,
- State the relief requested (e.g., termination or re-competition of a contract).
If you are represented by a bid protest attorney, you may also request protective orders, particular documents from the agency, or a hearing before GAO. The bid protest process allows government contractors to represent themselves and have the case decided without a hearing. You are not required to be represented by a bid protest lawyer.
GAO Bid Protest Regulations and Matters Outside Of GAO Jurisdiction
Under GAO bid protest regulations, there are certain types of bid challenges that should not be filed at the GAO. They include:
- Small business size standards protests and standard industrial classifications; issuance of or refusal to issue certificates of competency under Section 8(b)(7) of the Small Business Act; and determinations to procure particular requirements through the SBA 8(a) Certification Program.
- Alleged procurement integrity violations that the protester did not to report to the agency responsible for the alleged violations within 14 days of discovering them;
- Procurements by agencies other than federal agencies as defined in Section 3 of the Federal Property and Administrative Services Act;
- Awards or proposed awards of subcontracts, unless the agency awarding the prime contract had requested in writing that subcontract protests be handled by GAO as non-statutory protests;
- Suspensions or debarments of contractors by agencies; or
- Decisions by agency tender officials to file or not file protests in connection with public-private competitions.
GAO GAO Protest Decision Timeline
GAO protest decisions are typically resolved within 100 calendar days of their filing. If you file a Court of Federal Claims bid protest, you may wait longer than the traditional GAO protest decision timeline.
Can You File or Be a Party to a GAO Protest? GAO bid protest can only be filed by any “interested party,” or if you are an “actual or prospective bidder or if your direct economic interest would be affected by the award of the contract or by failure to award the contract.”
You can be an interested party in both pre-award and post-award GAO protests. Before the award, if you would have submitted a bid, but for the alleged government error, then you can qualify as an interested party.
If you are considering filing a post-award GAO bid protest, you can be an interested party if you were eligible for an award, or if you stood a substantial chance of getting the award.
The GAO bid protest process often requires that you to:
- Have bid or offered; and,
- Be next in line for the award if the protest is sustained for you to be recognized as an interested party.
GAO Bid Protest Regulations Process for Contractor Intervention
In addition to prospective or actual bidders, other parties to GAO bid protests can include the agency conducting the challenged procurement and, potentially, one or more protest intervenors. Intervenors enter protests to protect their status as awardees or potential awardees under the protested contract. When the contract has not yet been awarded, GAO bid protest regulations permit all bidders who “appear to have a substantial prospect of receiving an award if the protest is denied” to intervene. Interested parties must still me the GAO protest timeline requirement.
For post-award GAO protests, when the contract has been awarded, GAO protest process permits the winning bidder to intervene or defend its rights to the award.
CICA Stay of Contract Award or Performance
The GAO protest process allows for invoking a CICA stay, or postponement, of contract award or performance. With pre-award bid protests, an agency may not award the contested contract until the protest has been resolved.
In post-award GAO protests, the agency must withhold authorization of performance under the contract while the protest is pending.
These bid-protest stays, sometimes called, “CICA automatic stays,” are a key aspect of the bid protest process. Congress did not provide for similar stays when bid protests are filed with the Court of Federal Claims. If you file a Court of Federal Claims Protest, there is no automatic stay and you, or a bid protest attorney, must file for a Temporary Restraining Order.
Agency Exception to CICA Stay
Filing a GAO bid protest does not conclusively stop contract award or performance. Under GAO bid protest regulations, the Agency can override the CICA Stay if there are:
- Urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General, or
- The performance of the contract is in the best interests of the United States.
In a GAO contract protest, the agencies are required to inform GAO of their CICA Stay override determinations. GAO does not review the agency’s override determination and cannot reverse it. GAO lacks authority and jurisdiction to keep the agency from proceeding to award or authorize performance of the contract under the CICA Stay override.
GAO Protest Process — Authority and Decision Making
Under the GAO protest process, when it finds no illegalities or other problems, it is to deny the protest, leaving the agency free to award the contract, or authorize performance under it, barring a court order to the contrary.
When GAO finds problems, however, it would sustain the protest and may recommend that the agency:
- Refrain from exercising its options under the contract,
- Recompete the contract,
- Issue a new solicitation,
- Terminate the contract,
- Award the contract consistent with the requirements of statutes or regulations, or
- Implement any other recommendation that the “Comptroller General determines to be necessary to promote compliance with procurement laws and regulations.
For additional questions about GAO bid protest regulations, bid protest timeline and process, of if you need representation, call our GAO protest lawyers at 1-866-601-5518.