One of the issues in filing a bid protest is the timeliness rules. Even more confusing is the deadline to file to GAO protest and the timeline to have the CICA stay enforce. Getting the confusing details sorted can make the difference between getting the case heard and getting the protest dismissed for being late.
Government contractors should be aware that the agency has no obligation to spell out the rules for filing a bid protest. The courts will not give any leniency simply because you did not retain a bid protest attorney.
GAO Protest Timeline
Post-award protest deadline: The Government Accountability Office (GAO) bid protest timeliness rules show that if you are filing a post-award protest, that you have to file the protest must no later than 10 days after “the basis of protest is known or should have been known (whichever is earlier).” 4 CFR 21.2(a)(2). Read about Arbitrary and Capricious Standard for Challenging Agency Actions.
Debriefings and CICA Stay. If you are challenging competitive procurements under which debriefings are requested and required, your bid protest “shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held. See Dyncorp International LLC v. United States, No. 13-689C(Fed. Cl. Oct. 29, 2013).
- Never gamble with prolonging your case with a potential argument that may save you. Courts are not that forgiving.
- Not that actual knowledge is not the prerequisite. Instead, it is when you should have known- that is more stringent
- File a GAO Protest within 10 days after your new or show have known about the basis of your bid protest.
- Do not wait until the last day. Instead, your bid protest must be filed sufficiently in advance of the end of the 10-day period so that GAO can give notice to the contracting agency.
Override Definition Government Bid Protest Deadline for CICA Stay
If you are looking to get an automatic CICA stay in a GAO protest, you should always remember the 10-day requirement and the 5-day requirement as the magic numbers for either filing a protest or getting some override safeguard that the CICA Automatic Stay will be put in place. There is much litigation about the override definition in government bid protests.
If you are awaiting a required debriefing, then to preserve any rights under the CIA Stay rules, you should file a bid protest within 5 days after your FAR debriefing (Make sure that you don’t get caught in a landmine where follow up questions tend to make you think that the debriefing is not over – always ask the CO).
- You should focus on filing the protest for a CICA stay within 5 days – NOT Calendar days. See 31 USC 3553(d); FAR 33.104 (2013).
- If the last day ends on a Saturday, a Sunday, or a legal holiday, then the next day would apply.
Challenging the Agency Decision to Override the CICA Stay
When evaluating a challenge to an agency’s decision to override an automatic CICA stay, some judges at the United States Court of Federal Claims do not agree on whether the court should apply the test for injunctive relief or the test for a declaratory relief. See Dyncorp Int’l LLC v. United States, 113 Fed. Cl. 298, 307 (2013) (“This is a topic on which judges of this court have disagreed.” (citations omitted)); see also PMTech, Inc. v. United States, 95 Fed. Cl. at 347 (“There is a split in the precedent of this court as to whether declaratory relief or injunctive relief should be afforded the successful protestor of a CICA stay override.”). When evaluating challenges to an override decision, certain judges on the United States Court of Federal Claims have stated that utilizing the four-factor test for injunctive relief is more appropriate than the test for a declaratory judgment. See VA Service Disabled Veteran Owned SDVOSB Requirements & Joint Venture Contracts
- The bottom line is that you should not get your hopes up when you challenge the agency decision of override the CICA automatic stay.
- The legal approach should be that if it is “automatic” then the Agency should presumably have a high burden to convince the Court why it has to overcome the automatic presumption.
Timeline for Filing a Bid Protest Case at the Court of Federal Claims
Government contractors always have the option to file a bid protest at the U.S. Court of Federal Claims. Technically, there is no protest deadline. However, judges at this court tend to hold contractors’ feet to the fire. This is especially true when their bid protest lawyers are filing a new protest at the COFC.
Then there is a previous GAO protest ruling, federal contractors should immediately seek a COFC bid protest attorney to prepare for filing a new protest.
- Filing a bid protest is not a direct appeal of the GAO protest decision. Instead, you are filing a new protest.
- Be mindful that the COFC protest judges will still look at the GAO case file.
No protest timeline at COFC?
How can that be? Although there are no official protest deadlines at the Court of Federal Claims, there are still some brutal decisions where the COFC still can dismiss your case for lack of jurisdiction under 28 USC 1491(b)(1). Such cases include ” Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed. Cir. 2006). See also CGI Federal Inc. v. United States, 779 F.3d 1346, 1348 (Fed. Cir. 2015).
Contradicting cases at the Federal Circuit level. Although the Court may look towards these case, there are other cases where government contractors alleged in their protests that there was a violation of a law or statute in connection with the procurement. In such cases, the U.S. Court of Appeals for the Federal Circuit suggests that the timelines for considering a bid protest at the COFC spans from the procurement planning stage all the way until the contract closeout. See Court of Appeals for the Federal Circuit Bid Protest Appeal – Patent Ambiguity-what-does-ambiguity-mean.
- The bottom line is that you should seek legal counsel to assess whether your bid protest would be a problem at the COFC.
Does CICA Contracting Allow for Automatic Stay at COFC?
The short answer is no. Bid protest litigants have to file a motion for a Temporary Restraining Order (TRO). The question is if on one side the stay is automatic, then why is it on another forum so difficult to have the agency cease procurement activity until the court makes a decision. This issue in CICA contracting will not be resolved any time soon.
The answer is in the statutes that grant jurisdiction to the COFC. Until that challenge is resolved, the reality is that the Court will very seldom grant a CICA stay.
For help filing a bid protest, CICA contracting definitions and 4 CFR 21.2 timeliness issues in a GAO protest or Court of Federal Claims bid protest, call the lawyers at Watson & Associates, LLC at 1-866-601-5518.