Basics to File a GAO Bid Protest Against Federal Contracting Agencies

Filing a GAO bid protest allows unsuccessful bidders to challenge a government contracting agency’s decision to award a federal project to another company. The protestor can file a bid protest either at the agency level, at the Government Accountability Office (GAO) or at the U.S. Court of Federal Claims. With either choice, there are procedural rules and short deadlines that must be met.

• Failure to meet either can get your case dismissed.
• You want to get some level of legal analysis to make sure that you have a factual and legal basis to a file a GAO protest.

Pre-award and Post Award GAO Bid Protests

At the pre-award stage, protestors must act quickly. Generally, terms and conditions of the solicitation can be challenged before bid closing. In addition, a pre-award protest can include exclusion from the competitive range, restrictive solicitations, sole source decisions and small business set-aside decision.

After award, government contractors can file a post award GAO bid protest. This typically challenges the agency’s award decision. The protestor primarily would show that the Agency acted unreasonably, arbitrarily or violated procurement law.

Decision to Request a Debriefing

When you know about the recent award, unsuccessful bidders should request a post award debriefing. This allows companies to gain more insight to the agency’s award decision. It also provides information to file a GAO protest. When you are entitled to a required debriefing, the deadline to file a GAO bid protest is tolled or suspended until the agency gives the debriefing. See also information about the CICA Automatic Stay.

• Non-required debriefings do not suspend the filing deadlines.

Interested Party Filing Requirement

To file a GAO bid protest you have to be an interested party. This means that you can be a potential or actually bidder that has an economic interest in the procurement. In addition, contractors would have to show (in a post award protest) that if GAO or other court sustains the protest, that they would have a substantial chance of winning the contract.

GAO Bid Protest Intervention

GAO bid protest regulations allow you to intervene into  the case. Typically the successful bidder enters the case and has a say in the litigation. Filing a bid protest is a direct challenge against the Agency’s action and not a case against the awardee.

As the winner of a federal contract, intervenors have an interest in the outcome of the case. Therefore, procurement law gives them a right to defend against the protestor’s allegations.

• Intervenors also have to meet the Interested Party requirements.
• The agency does not have a legal requirement to protect the intervenor’s interest.

Protective Order

The bid protest process involves sensitive information about the agency’s source selection process and detailed information about bidders. Therefore, GAO protest attorneys representing parties can gain access to the protective order. This order has strict rules that focus on non-disclosure of the sensitive information.

• When contractors to decide to file a GAO bid protest, they must also realize that they cannot gain access to the protective order.
• This is why protestors and intervenors often find a government contract bid protest lawyer to represent them.

GAO Decisions and Timelines

GAO bid protest decisions can take up to 100 days after filing the protest. However, the Court of Federal Claims is not bound by the 100-day requirement.

GAO may direct the agency to reevaluate the proposals, re-solicit the procurement or other available remedies. However, GAO does not re-evaluate proposal. Instead, it looks for the reasonableness of the agency’s award decision. It also cannot substitute the business judgment of the agency unless it was unreasonable or violated procurement law.

For more information or representation with filing a GAO bid protest, Watson & Associates, LLC at 1-866-601- 5518 for a free initial consultation.