iThe most important element of a GAO protest – next to its legal merit, of course – is timing.
While the U.S. Government has three, separate forums for filing and pursuing a bid protest, the Government Accountability Office (GAO) is by far the most popular. The GAO is the preferred forum because (1) it provides for an independent review of the procuring agency’s actions, (2) it is relatively inexpensive, and (3) it is quick. In fact, the GAO is under statutory direction to decide each protest – regardless of its complexity – within 100 days of the date it was filed.
Filing Deadlines
The same urgency that drives the GAO to decide its protests so quickly also drives very short filing timelines. We have found over the years that the number one reason we have been unable to file a viable GAO protest for a client is that the filing deadline had already passed at the time the client first approached the firm, rendering it untimely at the GAO and subject to summary dismissal.
GAO protest deadlines principally fall into two different tracks, based on the nature of the protest: (1) pre-solicitation protests, and (2) post-award protests. A pre-solicitation protest is a protest that challenges the terms of a solicitation. Generally, in order to successfully challenge the terms of a solicitation at the GAO, the protester must file its protest prior to the time set for receipt of initial proposals. The same rule applies if the protest is based on a defect in an amendment to a solicitation. In that case, the protest must be filed before the due date for revised proposals.
In order to protest an agency’s decision to award the contract to another company (or an agency’s decision to eliminate the protester from a competition), the protester must file its GAO protest within 10 days after the basis of protest is known or should have been known (whichever is earlier). In many procurements, the 10-day clock begins to run when the protester receives notice that award was made to another company, or that it was eliminated from the competition. In other cases where the procurement was conducted on a the basis of “competitive proposals” and a debriefing is “required,” the protester gets the opportunity to obtain the debriefing before being forced to file its protest – in such a case, from a timeliness standpoint, the protester must file at the GAO within 10 days after receiving its debriefing, as long as it was timely requested. Importantly, contractors considering a protest must be aware that GAO “days” are not “business days,” but rather are based on calendar days. Thus, if you have 10 days to file a protest, that amounts to 10 calendar days (unless the filing date falls on a weekend or federal holiday, in which case the protest is due the next working day).
Stay of Performance
Filing a timely post-award protest at the GAO will have a secondary effect – it may force the agency to put the new awardee’s work on hold while the GAO decides the protest. This is called a “Stay of Performance.” Likewise, if a protest is filed prior to award, then the agency may not make an award until the protest is resolved. In most cases, the agency will extend the incumbent contractor’s contract during this period.
The basic timeliness rules for achieving a Stay of Performance in a post-award protest are the same for a regular, post-award protest at the GAO (the 10-day Rule), except that where a debriefing was required, the protester must file a protest seeking a Stay of Performance within five days of the debriefing. The practical effect of this 5-day deadline is that protests are generally filed at the GAO within five days of the debriefing.
Defense of a Protest Filed Against your Award
Finally, while most government contractors know that they may protest the loss of an award, many awardees do not know that they have a similar right to defend a GAO protest – side-by-side with the agency. The awardee may “intervene” in the protest in order to protect its economic interest in the protest’s outcome. If the awardee chooses to intervene, then it (or its attorney) is (1) entitled to notice of all protest milestones and filings, (2) granted access to all protest-related documents (subject to any protective order), and (3) may submit briefings in support of the agency’s award to the awardee. No strict timelines apply to intervention, but early intervention will permit the awardee to participate in all phases of the protest defense. However, waiting until the last minute to intervene could deprive the awardee of any real ability to influence the agency’s response or effectively defend against a protester’s allegations.
In summary, GAO protest deadlines are short and unforgiving. Therefore, any company that is considering filing a GAO protest must keep an eye on the filing deadlines in order to be able to effectively utilize the protest as a tool to remedy an agency’s improper actions.
