As a federal contractor, you might be familiar with the general rule that is you have grounds to file a bid protest due to improper proposal evaluation or some other valid reason, you as the disappointed offeror can file a bid protest at the Government Accountability Office (GAO) and obtain a stay of contract performance in accordance with the Competition in Contracting Act (CICA) commonly known as a CICA. However, facts in every case can be different. A benefit of filing a bid protest at the GAO is that stay of performance of the contract is almost a sure thing.
Whereas, bid protest filing at federal agencies’ Court of Federal Claims (COFC) does not make the stay of contract performance automatic.
When you file bid protests challenging the government’s bidding and evaluation actions after award of a contract, or trying to respond to government contracts for bid, the Competition in Contracting Act (“CICA Stay“) Automatic Stay Rule, under 31 USC 3553 typically suspends any procurement action until the court decides a government contract protest case.
However, there are some exceptions to the rule where the government can implement the CICA Stay override rules. Many contractors have heard about the GAO Bid Protest Automatic Stay but are not quite familiar with the general rules.
- When deciding to file your federal procurement protest, keep in mind that the CICA stay is not 100% guaranteed.
- Remember that when filing a bid protest case at the US Court of Federal Claims, there is no such thing as an automatic stay
Regulations – Reasons for Bid Protest Automatic Stay Override – 31 USC 3553: The CICA Stay is legally mandated under GAO protest procedural rules. See 31 USC 3553. However, there can be an exception to the rule if the head of the federal 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 federal procurement system” and still be rational. See Reilly’s Wholesale, 73 Fed. Cl. at 711.
If either of the above situations occurs, then the procurement will continue, and GAO will not impose the Stay. Search the GAO bid protest docket to see what cases have been filed to date. See information on Automatic CICA Stay Override Mistakes by federal agencies.
Government FAR Protest Timeline & GAO Notification: After companies have received their required debriefing after the award of a contract, 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 for a government contract protest 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 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). See information about TRO requirements at the COFC.
Never Assume that the Automatic CICA Stay Rule Will Always Apply: When it comes to the GAO automatic stay under GAO bid protest regulations and 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 CICA automatic stay is a very powerful tool, having your protest filed within the government contract protest 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 Bid Protest Automatic CICA Stay rule, corrective action disputes, 31 USC 3553 and other GAO bid protest filing rules, please call a GAO bid protest lawyer at 1-866-601-5518.