When you file a bid protest, the Competition in Contracting Act (“CICA”) Automatic Stay Rule, under 31 USC 3553 typically suspends any procurement action until the court decides the protest. However, there are some exceptions to the rule where the government can override the stay.
Many contractors have heard about the GAO Automatic Stay but are not quite familiar with the general rules.
- When deciding to file your protest, keep in mind that the stay is not 100% guaranteed.
Reasons for Automatic CICA Override – 31 USC 3553
The Automatic Stay is legally mandated under GAO procedural rules. See 31 USC 3553. However, there can be an exception to the rule if the head of the procurement activity finds in writing either:
- “Urgent and compelling circumstances for continued performance of the contract is in the best interests of the United States, or
- Urgent and compelling circumstances will significantly affect interests of the United States.
- The override decision must consider “the impact of the competition and the integrity of the procurement system” and still be rational. See Reilly’s Wholesale, 73 Fed. Cl. at 711.
If either of the above situation occurs, then the procurement will continue, and GAO will not impose the Automatic Stay.
After companies have received their required debriefing, it’s always suggested to file your bid protest within five days. This increased the chance of getting the procurement stayed.
Not meeting five-day requirement can be a problem because, within one day of receipt of the protest, GAO will telephone the contracting agencies to report that a protest has been filed. 4 CFR 21.3(a).
If your protest is not filed with the five-day timeline, the notification could be a defense for the agency and federal managers not to impose the stay. In addition to the automatic stay, the Court of Federal Claims has addressed several disputes about applying the stay.
Under the CICA 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). See information about TRO requirements at the COFC.
Never Assume that the Automatic CICA Rule Will Always Apply
When it comes to the GAO automatic stay rules, government contractors never want to assume that only because they file a bid protest that the stay is a guarantee. Nothing could be further from the truth. Although the GCICA automatic stay is a very powerful tool, having your protest filed within the timeline under the rules is critical.
- Failure to file in time may still allow performance to continue.
- An example of filing a bid protest to invoke the automatic stay would be after receiving a post-award debriefing.
- Although you may have a ten-day window to file the protest, you will want to file within five days for the stay to be in place.
- Under the GAO bid protest timeline rules, this also means that the protest must be filed in time for GAO to tell the agency by close of business on the fifth day.
For immediate help with the Automatic CICA Stay rule and other GAO bid protest rules, please call a GAO bid protest lawyer at 1-866-601-5518.