When you lose out on a government contract solicitation, you cannot afford to wait to file a protest because the timetable is extremely short. You have three separate avenues of protest: 1) a protest directly with the agency; 2) a protest at the United States Government Accountability Office (“GAO”), and 3) a protest at the Court of Federal Claims. Let us explain below.
1. CICA AND THE AUTOMATIC STAY OF CONTRACT AWARD OR PERFORMANCE
The Competition in Contracting Act (CICA) applies to both agency level and GAO protests. Importantly, there is no CICA stay at the Court of Federal Claims, but you can file an injunction action. But you cannot be tardy in doing this with the Court or the agency.
For pre-award protests, CICA prohibits the agency from awarding the contract when a protest is filed before award takes place. This is extraordinarily important to you. It makes it easy for the Agency to award the contract to you if the GAO decides in your favor because the contract is not being performed.
For timely post-award protests, CICA prohibits the awarded contractor and the agency from performing on the contract when a protester files under the strict timeliness standards.
The FAR requires the agency to debrief losing contractors when they request a debriefing of the evaluation process, and this is contemplated by CICA and affects the schedule for filing a protest. The Federal Acquisition Regulation (“FAR”) provides for a debriefing when requested within 3 days of an award decision—see FAR 15.506. Often, the agency takes some time to do the debriefing, and the debriefing may be in written form; it is not always an oral presentation.
The automatic stay of performance discussed above, which stops contract performance, applies if a protester files:
a) NO DEBRIEFING - 10 calendar days after contract award; or
b) WITH DEBRIEFING - whichever is later between 5 days after debriefing or 10 calendar days after award.
As you read through the below material, keep in mind that it is almost always favorable to you to get a stay of award or performance. But we understand that the tighter time restrictions are not always feasible. And just because you missed out on the automatic stay does not mean you should not file a protest.
2. SPECIFIC RULES RELATING TO INJUNCTIONS AGAINST PERFORMANCE
With a few exceptions, it is extraordinarily important to get a CICA injunction against performance (“a stay”) of the contract you are bidding on that has just been awarded to another contractor. When you file a protest at GAO in a timely fashion per the CICA rules referenced above, the injunction you get automatically stops the agency from allowing performance of the contract to go forward until the GAO decides the case. This could mean you have a stay on performance for up to 100 days, which is the maximum amount of time allotted for GAO to issue a decision.
This injunction is extremely important. You should understand that it is much easier for both the GAO and the agency to deal with the outcome of a protest in a favorable fashion for you if you obtain an injunction by timely filing.
During that time period, the agency has many options, including canceling the award and doing the solicitation over again, a second time, in a way that is most likely more favorable to you and the defects you’ve been complaining about in the solicitation. Often, GAO will accept this as a basis for resolution of the protest. In addition, GAO will sometimes suggest corrections to the solicitation document. All of this can easily be done at no cost to the government because performance has been stopped.
3. AGENCY LEVEL PROTEST
You need to file any protest at the agency level within 10 days of your learning of the problem. As a practical matter, this is loosely enforced. The real key is to make sure you file your protest at least 30 days before an award decision is made so the agency has time to adequately consider it.
For example, if you get a solicitation that has a specification with defects, restrictive provisions, or similar problems for your bid or proposal, you should file your protest within 10 days of learning of it. However, agencies, unlike GAO, are relaxed on the 10-day rule.
We recommend agency-level protests—they are a cheap, easy, and efficient way to get defects hurting the competitiveness of your individual bid or proposal corrected in a solicitation. This is done before you finalize your bid or proposal—what an opportunity! Remember, the solicitation document was prepared by laymen—when you file an agency protest, you get an additional level of review. The lawyers who are going to have to defend the protest that may be coming have an opportunity to fix the solicitation document. Often, they will do that. We’ve seen it over and over again, where the agency protest prompts useful action in fixing the solicitation document.
You can talk to the contracting officer and their agency counsel, and often get things resolved informally. They just amend the solicitation to fix it. Of course, you are telegraphing the problem to all of the other prospective bidders so that they make adjustments in their bids.
4. GAO PROTEST
The GAO is where most protests are filed and where we generally recommend protesters go to because the GAO has a long track record of handling protests with well-established precedent. As we have noted, you have 10 working days from the adverse agency action to file your protest at GAO. We prefer not to wait until the 10th day because you must be sure the contracting officer is served with a copy of the protest by the 10th day. Remember, too, about the additional CICA timeline referenced above.
The adverse action is generally the award of a contract, the closing date for an RFP that is restrictive, defective, or in some way prejudicial. Again, on an RFP, you cannot wait for the award, if you can see a basis for a protest before and when the RFP closes. See GAO Rule 21.2.
5. COURT OF FEDERAL CLAIMS INJUNCTION PROTEST
There is technically no time limit on filing injunction proceedings in the Court of Federal Claims. However, there are many good reasons to go to GAO, and you can always go to the Court of Federal Claims if you lose at GAO. Be cautious about the pre-notifications you have to give, per Appendix C in the Court’s Rules.
Legal fees are a big determinative factor, whether you go to GAO or the Court. A GAO protest of modest complexity can often be done for as little as $3,000-$5,000 in legal fees. However, an injunction proceeding protest at the Court of Federal Claims can easily cost $50,000-$100,000 in legal fees, or more, because it is formalistic and a court proceeding with numerous pleadings and short time schedules to do them in. It runs up the bill, often to a staggering number.
Very few people go to the Court of Federal Claims in a protest - but if it is a large contract, and it is a key to your survival—you may well need to go to court. For example, if you are out of business if you were to ultimately lose the contract, the injunction proceeding should be considered.
CONCLUSION
The foregoing is but a quick overview and snapshot. Look at our separate post that deals with decision making with regard to protests. We are also prepared to talk you through all of the different considerations if you would like before you decide to proceed, and at no charge for the initial consultation, until you decide if you wish to go forward. At that point, we will ask you for a retainer to cover the future expected legal fees.
More Resources about Bidding and Bid Protests:
Additional Resources in this Section: