Contractors have multiple options when contesting an award decision by a procuring agency. They may protest before the procuring agency, Government Accountability Office (GAO), and Court of Federal Claims (COFC). Bid protest is a dispute challenging an award for goods and services or terms of a solicitation of such contract. Protests succeed if evidence demonstrates the procuring agency legally erred in the competition or award of a contract. Below you will find the U.S. government contract protest period simplified, steps taken to implement protests, and the length of time they take.
Protest Before a Procuring Agency
Agencies are expected to resolve a protest within 35 days of receipt. A procuring agency halts an award to a contract until the protest is resolved. An exception to this rule is if the agency determines there are “urgent and compelling reasons” or if awarding the contract is “in the best interest of the Government.” Agencies are expected to provide a “well-reasoned” explanation of the agency’s protest decision.
Protest before GAO
A pre-award protest must be filed prior to the deadline for submission of proposals. These protests challenge the terms of the competition as stated in the solicitation. This includes challenging ambiguous or restrictive requirements. A proposal must still be submitted to the agency to ensure standing to protest.
Before submitting a bid protest, the offeror should request a debriefing from the contracting agency to obtain information regarding their bid. This must be done within three days of the notice of intent to award. This step provides the protestor with information regarding the agency’s selection process. It is preferable to request an oral debriefing rather than written. This prevents the agency from providing you the bare minimum required by the Federal Acquisition Regulation (FAR).
Filing a Protest
Federal law requires protests before GAO to be “inexpensive and expeditious.” In doing so, it places time limits for filings and rulings by GAO shorter than a typical judicial process.
Offeror’s must file a protest within 10 calendar days after “the basis for the protest is known or should have been known, whichever is earlier,” or within five calendar days of a debriefing that is requested, whichever is later. GAO must inform the agency of a protest within one day of being filed. Notice triggers a 30-day window for the agency to respond. The procuring agency must provide GAO and the protestor all documents “relevant” to the protest. Once the procuring agency receives notice from GAO, it implements a stay, halting the award of the contract until GAO issues a recommendation on the protest. GAO is given 100 days from the day the protest is filed to issue a recommendation.
Protest Before Court of Federal Claims (COFC)
The COFC reviews final agency procurement actions. It is the only judicial forum authorized to hear bid protests. The protester must demonstrate it is an “interested party.” The COFC and its appellate court, the U.S. Court of Appeals for the Federal Circuit uses the Competition in Contracting Act’s (CICA) definition of “interested party” as an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”
The COFC sets aside agency action if it is “arbitrary, capricious, abuse of discretion, or not in accordance with the law.” It requires the procuring agency to provide the full administrative record associated with the protest. It awards declaratory and injunctive relief. Monetary relief is limited to bid preparation and proposals costs. Remedies issued by COFC are legally binding and may be enforced through contempt of court.
Bid protest lawsuits with the COFC may be filed before or after protests with the procuring agency or GAO. Unlike protests filed with GAO, those filed through COFC do not have the benefit of an automatic stay. They instead request the agency voluntarily to impose a stay, or petition the court for a preliminary injunction, or temporary restraining order.
Post-award protests with COFC are not subject to initial filing deadlines with the exception of a six-year statute of limitations applicable to claims against the U.S. government. COFC bid protest opinions are not issued under a specific deadline and often takes more time to issue a decision. COFC rulings are legally enforceable and may be appealed to the Federal Circuit.
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