My name is William Welch and I head the Government Contracts Law Group of General Counsel, PC. Our group has been involved in over 150 bid protests in nearly 20 years of Government Contracts practice. Today, we are discussing bid protest jurisdiction at the U.S. Government Accountability Office.

The U.S. Government Accountability Office, GAO as it’s called, has had jurisdiction over bid protests relating to U.S. Government procurements for nearly one hundred years. The rules governing GAO’s protest practice are found in the U.S. Code of Federal Regulations at 4 C.F.R. Part 21.

Generally defined, a protest is a complaint about a U.S. Government Agency’s actions relating to its acquisition of products or services for the U.S. Government.

The GAO hears two basic types of protests. First, they hear complaints regarding the terms of a Government request for proposal, solicitation or invitation to bid. Is the request or solicitation too ambiguous, too incomplete for an offeror to submit a reasonable or responsive bid or proposal? Is the solicitation too restrictive in its terms: does it limit competition more than necessary to meet the government’s needs. Does it require a brand name product when a non-brand name product is comparable and would meet the Government’s needs. Does the solicitation combine or bundle different types of work in a way that prevents small businesses from competing or that allows only very large businesses to compete? Should the solicitation be set-aside for small businesses, or HUBZone businesses, or service-disabled, veteran owned businesses.

These are some of the issues that GAO will consider under its protest jurisdiction relating to the terms of a specific procurement. Any protest that relates to the terms of a solicitation must be filed before proposals are due or, if discussions have been opened, then before final proposal revisions are due. Any protest addressing the terms of a solicitation filed after bids or proposals are due or after award of a contract, will be dismissed and not considered on the merits.

GAO also hears other matters relating to a U.S. Government procurement, primarily issues relating to the award of a U.S. Government prime contract. GAO may consider allegations that the Agency failed to follow the evaluation criteria stated in the solicitation or followed evaluation criteria that were not included or not announced in the solicitation. They will consider allegations that the awardee’s proposal was not complete or failed to meet the solicitation requirements in some way. They will also consider an Agency determination that the protester was improperly excluded from the competition, or that the protester’s proposed product failed to meet the required specifications or its proposal failed to comply with solicitation requirements or instructions and thus was not eligible for award. Under some circumstances, GAO will consider whether an existing contract is improperly changed or increased beyond its original scope, where the change or increase should have been the subject of a separate procurement.

Generally speaking, GAO’s protest jurisdiction relates to the procurement phase or the competition and award of a contract and not to issues that may arise during the performance of a contract. So, GAO will not consider contractor disputes, contract performance issues, or (with some exceptions) contract terminations. There are some other areas that relate to procurements that GAO does not consider: probably the two most important are small business issues and contractor responsibility.

If a contract has been set aside for small businesses generally or for HUBZone contractors or Service Disabled, Veteran Owned contractors, and a protester does not believe that the proposed awardee is a small business, or is a proper HUBZone contractor or a qualified SDVO contractor, the GAO is not allowed to hear these protests. Size protests, HUBZone protests, SDVO protests, or 8(a) protests must go to the contracting officer first, then to the Small Business Administration for a final decision. Also, if a protester alleges that the awardee is not responsible or does not have the capability to perform the contract, the GAO will not consider this protest.

When must you file your protest? As we said before, protests relating to the terms of a solicitation must be filed before proposals are due. All other protests must be filed, for the most part, within ten days of when you knew or should have known of the basis of the protest. This includes information that you learn prior to award of the contract.

There is a more important timing consideration in filing a bid protest. Under certain circumstances, a timely filed bid protest will require the agency to suspend performance of the new contract until the GAO decides the merits of the protest. This is generally called the automatic stay provision that can follow a GAO bid protest. FAR § 33.104(c) says that the Agency must suspend performance of the new contract if GAO notifies it of a protest within 10 days of contract award or within 5 days following a mandatory debriefing to the prospective protester under FAR Part 15, Negotiated Procurement, whichever is later. If you can get the contract stayed, you are much more likely to get another shot at receiving the contract if your protest is successful.

What happens after you file your bid protest? A few days after filing your protest, the GAO will review the protest to determine if, on its face, it is timely and provides a detailed statement of the legal and factual grounds for a protest. If it does not, GAO may dismiss the protest. If it does, GAO will request that the agency respond by preparing an Agency Report, containing a statement of facts and legal argument along with all documents that are relevant to the protest grounds. The Agency has 30 days following notice of protest to submit the Agency report.

Once the protester receives a copy of the Agency Report, the protester has 10 calendar days to provide its response or comments on the Agency report. If there are factual allegations that are not resolved to GAO’s satisfaction following the Agency Report and protester’s comments, the GAO may hold a hearing and take testimony. The GAO will usually decide the merits of the protest on the written record and without a hearing, but hearings do occur in some cases.

The GAO has 100 days following the protest to render its decision. Our experience has been that GAO will usually take most of that 100 days to render its decision, but it has never missed that 100 day deadline.

If anyone is considering whether to file a bid protest, please contact us as soon as possible. As you can see, some of these deadlines are very short and are easily missed. The sooner you are represented by knowledgeable bid protest counsel, the better.

We hope this overview of GAO’s bid protest jurisdiction has been helpful and informative. This presentation is not intended as an offer of legal advice, but is intended as informational only. Please contact us for specific legal advice for your specific situation.