A lot of government contractors have a general understanding of and awareness of a bid protest, but if you are in a situation where you want to file a bid protest, it can be a little overwhelming. 

Need some help filing a bid protest? We can help; reach out today for a free consultation! We can also help if you need a government contracting attorney in general to help secure government contracts for your business. 

Also, remember that time is not your friend during most of this process —if you are planning to submit a bid protest, you will need to move quickly. 

Am I Eligible to File a Bid Protest? 

A bid protest is something you file at various stages of the procurement process. It could be filed as a pre-award bid protest, in an instance in which you discover a defect in the solicitation itself, or it could be filed post-award when you believe that the procurement process was either carried out incorrectly or resulted in an unfair outcome.

You might believe your company should have been the awardee based on the evaluation criteria, or you may learn that the contracting officer did not apply the evaluation criteria in the way the request for proposals stated it would be.

Types of Bid Protests

1. Agency-Level Bid Protest: The first type is one that you file with the competing agency. This is referred to as an agency-level bid protest.
2. GAO Bid Protest: The second type is a GAO bid protest, which is filed with the Government Accountability Office. They have their own set of rules, covered under 4 CFR, part 21.
3. Court of Federal Claims Protest: The third type is a protest filed at the Court of Federal Claims, a court in Washington, D.C. It’s a court of unique jurisdiction where all claims born in a contract against the federal government have to be filed. They cannot be filed in any other U.S. District Court.

Requirements for Filing a Bid Protest

The requirements for filing a bid protest mean that you or your company must have been adversely affected by a rule violation in the procurement process. The contracting officer or staff must have done something “out of bounds” related to the federal acquisition regulation or federal statute, and you have to have been negatively impacted. Just finding a rule violation isn’t enough; you must demonstrate to the GAO, the contracting officer, or the Court of Federal Claims that the violation negatively impacted your company, typically termed as your prejudice.

Learn more about bid protests in this 19-minute video on the fundamentals of filing a bid protest: 

Timelines and Procedures

Please note: We’re providing information based on the procedure at the time of writing this, but it’s always recommended that you go to that particular organization's website to ensure you’ve got the most up-to-date information on items like filing fees, deadlines, etc. 

Agency-Level Protest

You can file an agency-level protest with the agency that released the request for proposal (RFP). The regulation states that you have ten days from when you knew or should have known about the problem with the award. If you get a notice of award and you review it, and say, “Hey, we should have been the awardee,” you have 10 days from the date of award to file your protest.

If you request a debriefing, and it's required under FAR Part 15 (covering negotiated procurements), you still have 10 days to file. For pre-award bid protests, you have up until the date and time that offers are due to file.

When does it make sense to file an Agency-Level Protest vs. with a GAO or Federal Claims? 

Agency-level protests are generally the least formal and could be less expensive. They also might offer a quicker resolution compared to the GAO or COF. 

How to File an Agency-Level Protest

• Attempt Resolution with the Contracting Officer: You might try to resolve things with the contracting officer informally. However, if informal discussions don’t work, a formal protest might be your only option. 
• Prepare Your Protest: You will want to ensure your protest includes the following information:
  • Your name, address, and contact information.
  • Solicitation or contract number. 
  • A detailed statement of the legal and factual grounds for the protest, including any prejudice to the protester.
  • Copies of relevant documents.
  • A request for a ruling by the agency.
  • A statement of the form of relief requested.
  • Information establishing that you are an interested party.
  • Information establishing the timeliness of the protest.
• File the Protest: Submit the protest to the contracting officer or another designated official within the agency. Ensure that it is concise and logically presented to facilitate review.
• Timeliness: File the protest within the appropriate time frame. Protests challenging solicitation terms must be filed before bid opening or the closing date for receipt of proposals. Protests on other grounds must be filed within ten days after the basis of the protest is known or should have been known.
• Resolution Process: The agency should aim to resolve the protest within 35 days. The resolution process is designed to be inexpensive, informal, and expeditious. Agencies may use alternative dispute resolution techniques to facilitate the process.
• Decision and Further Action: If the protest is denied, you may request an independent review by a higher-level official within the agency. However, this does not extend the time to obtain a stay at the GAO if you choose to pursue further action there.

GAO Protest

At the GAO level, your protest must be filed no more than ten days after the award notice, and you must file on the GAO’s EPDS. **Please note: if you do this without an attorney, the government might choose to redact many of the documents you receive, limiting your information.**

Once filed, the government has 30 days to provide an administrative record. You then have ten days to submit comments on the agency report. Failure to do so will result in forfeiture of the protest. Inside those ten days, if you learn of additional grounds for protest, this is the time to raise them.

Steps for Filing with the GAO:

To file a bid protest with the Government Accountability Office (GAO):

1. Consult an Attorney (optional): Depending on the size and complexity of your bid protest, it might make sense to bring in legal counsel with experience in submitting and winning bid protests. Our office is happy to provide a free consultation on whether this approach might make sense for you. 
2. Use the Electronic Protest Docketing System (EPDS): All new bid protests must be filed using GAO's Electronic Protest Docketing System (EPDS). There is a $350 filing fee for using this system. (This goes up to $500 on October 1, 2024)
3. Prepare the Protest Documentation, Including: 
   • Your name, address, and contact information.
   • A detailed statement of the legal and factual grounds for your protest, including relevant documents.
   • Information establishing that you are both an affected party and that this is timely.
   • A specific request for a ruling by the Comptroller General of the United States and the relief you are requesting.
4. Submit the Protest: File the protest through the EPDS. Ensure that a complete copy of the protest is furnished to the contracting agency within one day of filing with the GAO.
5. Agency Report and Comments: After filing, the agency must submit a report addressing the protest arguments within 30 days. The protester must then file comments responding to the agency report within ten days of receiving it. Failure to do so will result in dismissal of the protest.
6. Additional Procedures: GAO may request additional filings, conduct alternative dispute resolution, or hold a hearing if necessary.

Court of Federal Claims

At the Court of Federal Claims (COFC), the timeliness requirement is one of the most reasonable, unlike the strict 10-day deadline at the GAO. Courts have varied on what is considered timely, with some cases saying 30, 60, or 90 days are reasonable for filing a post-award protest.

Filing at the Court of Federal Claims is essentially a “trial on the briefs.” The government must provide an administrative record, and you may be required to have an attorney due to the protective order in place. These cases are decided on motions, and there’s typically no trial or jury—just oral argument in front of a judge.

Why would I file at the Court of Federal Claims vs. the GAO? 

The COFC is generally more formal and expensive than the GAO or agency-level protests. However, it may be the better route if you have a more complex legal issue or if you are seeking a second chance after an unfavorable decision from the GAO. 

Here’s the breakdown of how to file with the Court of Federal Claims: 

• Consult an Attorney: Due to the complexity of federal procurement law, hiring an attorney is strongly advised. The COFC follows the Federal Rules of Civil Procedure, but some rules may be relaxed in the context of government contract law. Our firm has extensive experience in bid protests at the Court of Federal Claims, and we’d be happy to provide a free initial consultation on your case. 
• Understand the Jurisdiction: The COFC has jurisdiction over bid protests under the Administrative Dispute Resolution Act (ADRA) of 1996. This court can hear both pre-award and post-award bid protests.
• Prepare a Pre-Filing Notice: At least one day before filing the protest, submit a pre-filing notice to the court, the awardee, and the Department of Justice. Here’s a sample of a pre-filing notice. 
• Draft the Complaint, Including: 
  • A caption with your name and the United States as the defendant.
  • A detailed statement of facts and legal grounds for the protest.
  • A demand for judgment against the United States.
  • The plaintiff’s or attorney’s signature, contact information, and the date of signing.
• Filing the Complaint:
  • File the original complaint along with a completed cover sheet.
  • If filing in paper form, provide two copies of the complaint and any attachments.
  • Include a filing fee of $400, payable to the "Clerk, U.S. Court of Federal Claims." If you cannot pay, you can submit an Application to Proceed In Forma Pauperis.
• Service Requirements: The Clerk of Court will serve the United States. The "Notice of Assignment" will indicate the filing date and assigned docket number. The United States has 60 days from the filing date to respond to the complaint.
• Access to the Administrative Record: The COFC requires the agency to produce the entire administrative record, which includes all documents related to the procurement process. This can be beneficial as it provides more comprehensive access than a GAO protest.

Final Thoughts

It’s never fun to be in a situation where you feel a bid protest is warranted. If you are starting down this process, we’re happy to counsel you on whether a bid protest at the Court of Federal Claims, the GAO, or at the agency level is advisable and how our firm can help!