Government Contracting Database
A bidder who is dissatisfied with the nature or propriety of a solicitation may file a protest to the agency involved, the Government Accountability Office, or the United States Court of Federal Claims. Since it is very difficult to win a protest, it is incumbent upon a bidder to be certain that the matter raised is not frivolous, and that prior decisions of the United States Claims Court or the Government Accountability Office have not already established the government’s position on the matter. Great deference is given to the discretion of contracting officers to determine both the method of procurement and the needs of the government. Only in cases where the protestor can show that the government has violated its regulations, unduly restricted competition, or abused its discretion will a protest have any likelihood of success. (See FAR 33.1)
The procedures for filing a protest directly to the agency are very similar, in most cases, to the bid protest regulations of the Government Accountability Office. (See 4 CFR Part 21). Under these regulations an “interested party,” meaning one who has an actual or prospective economic interest in the solicitation, may file a protest based upon alleged improprieties in the solicitation which are apparent prior to bid opening, or the closing date for receipt of initial proposals, provided that the protest is filed before the bid opening or closing date of the particular procurement. In other cases, protests must be filed not later than ten calendar days after the basis of the protest is known or should have been known, whichever is earlier. The protest must be in writing and, if filed before the Government Accountability Office, should be addressed to the Procurement Law Group.
The protest must provide the identity of the issuing agency in the solicitation and the solicitation number; a detailed statement of the legal and factual grounds of protest including copies of relevant documents; a specific request for a ruling by the Comptroller General of the United States; and the form of relief requested. The protestor should also furnish a copy of the protest, including the relevant documents, to the individual (USUALLY THE CONTRACTING OFFICER) or location designated by the contracting agency in the solicitation for receipt of protests.
It is very important for the protestor to do his homework and to be prepared to address the position of the agency after its administrative report is filed. Whether the matter is before the agency or the GAO, the protestor should request a conference to discuss the merits of his position. If insufficient information has been submitted by the protestor, or if the protest falls within the category of protests, not within the general jurisdiction of the GAO, there is considerable risk that the protest will be dismissed summarily. Among the protests which may be dismissed without consideration of the merits are those concerning contract administration, small business size standards and Standard Industrial Classification, the Small Business Certificate of Competency Program, procurements under Section 8(a) of the Small Business Act, affirmative determinations of responsibility by the contracting officer, procurements which should have been protested to the General Services Administration Board of Contract Appeals (these deal with the procurement of automated data processing equipment and services), protests not filed to the GAO or the contracting agency within the applicable time limits, and procurements by agencies other than federal agencies as defined by Section 3 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 472 (e.g., U.S. Postal Service, Federal Deposit Insurance Corporation, non-appropriated fund activities), Walsh-Healey Public Contracts Act matters, and subcontractor protests.
If the protest is filed with the Government Accountability Office, the Competition in Contracting Act requires a decision to be issued within 125 days (as amended) of the date the protest was filed. In those cases where both parties agree to an expedited procedure known as the express option, a decision is to be made within 65 days. While the protest is pending, the agency is prohibited from awarding a contract unless performance of the contract is in the government’s best interest, or urgent and compelling circumstances significantly affecting interests of the United States will not permit waiting for the GAO decision. If the initial protest was filed with the contracting agency, an adverse decision by the agency may be subsequently protested to the GAO within ten calendar days of formal notification, or actual or constructive knowledge of the agency decision. Protestors may also appeal the decisions of the GAO to the United States Claims Court, or file the matter before the Court in the first instance. Generally, however, it is not advisable to bypass the agency or the Government Accountability Office, who are the most familiar with the procurement regulations involved, in favor of the Claims Court.
It is also possible to file a protest after award of the contract, provided that the protest is filed within ten calendar days of the date when the basis for the protest was known (or should have been known). In these cases, the notice to proceed will generally not be issued until the protest is decided, barring national urgency. If the project is already underway when the protest is filed, work will continue, and it is unlikely that termination of the contract will be ordered even if the protest is won. The government, in such cases, may have its “hands slapped,” but it will generally not be forced to suffer the severe financial consequences which would result from the midstream termination of the contract. If a protester is successful but is not granted award of the contract, he may be entitled to bid preparation costs and attorneys fees. A protester, however, is not permitted to recover anticipated profits or lost profits on other projects.
Updated: May 24, 2018