Automatic CICA Stay Overrides for GAO Bid Protests – 31 USC 3553(d)

Filing a GAO bid protest can invoke an automatic stay of contract award or performance that lasts until GAO, or the court makes a decision. The automatic CICA Stay is typically at the GAO protest level. At the Court of Federal Claims, the stay is not automatic and protestors will have to file a Temporary Restraining Order (TRO). The common question becomes whether the Court of Federal Claims can review a case where the procuring agency decided to override the stay of contract performance which would otherwise occur under the Competition in Contracting Act (“CICA”), 31 U.S.C. 3553(d)(3). 

Government Contracting Agencies can override the stay in certain situations that show urgent and compelling circumstances will not permit waiting for GAO’s decision, or performance of the contract is in the best interests of the United States.

As a government contractor, understanding the CICA  Stay override rules at GAO, Court of Federal Claims (TRO), or another forum, is very important when you decide to file a bid protest.

Increasing Your Chances of Getting Performance Suspended

If you file a protest afterward, and the agency receives notice from the GAO within five calendar days after award or within five days after a required debriefing, whichever is later, the Contracting Officer must suspend the award immediately or terminate the award unless, the Agency invokes the exception to the rule. To implement the stay, the notice must come from GAO. Again, the exception to the automatic stay could be accomplished by the head of the contracting activity.

Exception to Rule

If you file a protest before award, the agency is not allowed to award the contract after it has received notice of the bid protest. The exception to the so-called automatic stay rule is that the head of the contracting activity can make a written finding that there are “urgent and compelling circumstances” that will not permit for the GAO to make a decision AND an award is likely to be made within 30 days.

GAO generally will not review the agency’s reason to override the automatic stay. However, the Court of Federal Claims has jurisdiction to hear such contests from “interested parties.”

When it comes to making an argument to enforce the automatic stay, government contract bid protest attorneys should be focused on defeating the agency’s lack of rational basis.  The lawyer must also provide clear and convincing reasons for the override of the automatic CICA stay. See SBA Affiliation Rules Identity of Interest 13 CFR 121.103 & 13 CFR 121.301

GAO Automatic CICA Stay Process

Within one day of receipt of your protest, GAO will notify the contracting agency by either fax or telephone, or both, that a protest has been filed. If the award has been made, then the agency will notify the contractor that you have filed a protest.

The automatic stay is important to you as the protestor because it is directly linked to the result of the pending bid protest. Note that the CICA stay is automatic by statute.

• You do not have to show reason or go to a hearing to argue the matter at the GAO level.
• However, you would have to at the Court of Federal Claims. This is referred to as filing a Temporary Restraining Order.

Another important aspect of the rule hinges on whether there is a pre-award protest or post-award protest.

Pre-award protest stay: If you file a pre-award GAO protest, the agency is required to implement the automatic stay and not award the contract. However, the agency can still continue the evaluation process.

Post-award protest stay:  on the other hand, if you file a post-award GAO protest, the agency, upon notice from GAO must suspend performance of the contract until the protest is resolved.

Debriefing must be required: If you are relying upon the debriefing for your deadline to file a GAO bid protest, you must also ensure that there was a negotiated procurement under FAR 15. There would be no application of the rule for a bid protest if the debriefing were not a ‘required” one.

Agency protests will nullify the automatic suspension provisions: If you choose to file an agency-level protest, and then later file at the GAO level, you will not have the benefit of the automatic stay provision because, by its very nature, the agency’s 35 day response time will consume the stay requirement deadline.

What is the Agency’s Determination and Findings Regarding the CICA Stay?

As stated earlier, when you file a GAO protest, it would usually trigger the CICA automatic stay. See 31 USC 3553(d).  However, the government contracting agency may choose to inform GAO that there is a written Determination and Findings (“D&F”) which concludes that the CICA stay does not apply. The Agency will almost always suggest that the extent that the automatic stay would be required under 31 U.S.C. 3553(d)(3)(A), that the contracting officer has determined that overriding the CICA stay was “in the best interests of the United States,” and that “urgent and compelling circumstances . . . will not permit waiting for the GAO decision on the subject protest.

Specifically, when applying the CIC automatic stay rules, the contracting officer is required to “immediately direct the contractor to cease performance under the contract and to suspend any related activities that may result in additional obligations being incurred by the United States under that contract.” 31 USC 3553(d)(3)(A)(ii) (2006). The automatic stay is the rule as created by command of Congress, which lasts  through the determination of the bid protest, see 31 USC 3553(d)(3)(B). The automatic stay is legally mandated. See Special Rules When Appealing SBA COC & Small Business Certificate of Competency Decisions.

Can You Seek Review for CICA Stay Compliance at the Court of Federal Claims?

If you have reason to believe that the Agency’s decision to override the CICA automatic stay is arbitrary, capricious, and contrary to law, then you might be able to file a bid protest at the Court of Federal Claims requesting declaratory and injunctive relief to enforce the CICA stay. You will have to show why  the decision to override the automatic stay was arbitrary, capricious, and contrary to law; you will have to show how such a decision harmed your company, and a request to the COFC to enjoin the agency  from proceeding with the override until the GAO issues its decision on the bid. See Supreme Foodservice GmbH v. United States.

Many protestors sometimes believe that the automatic CICA stay rule must always apply no matter what. However, this is not true. 

For help seeking the benefit of the CICA Stay, or challenging the agency’s decision to override the automatic stat, call Watson’s government contract attorneys at 1-866-601-5518.

Contact a government contracts attorney.