INTRODUCTION

what is a bid protest

The laws and regulations that govern contracting with the federal government are designed to ensure that federal procurements are conducted fairly and, whenever possible, in a way that maximizes competition. On occasion, however, bidders or others interested in government procurements may have reason to believe that a contract has been or is about to be awarded improperly or illegally, or that they have been unfairly denied a contract or an opportunity to compete for a contract. A major avenue of relief for those concerned about the propriety of an award has been the General Accounting Office, which for almost 75 years has provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts.

Over the years, GAO has developed a substantial body of law and standard procedures for considering bid protests. This is the sixth edition of Bid Protests at GAO: A Descriptive Guide, prepared by the Office of the General Counsel to aid those interested in GAO's bid protest process. We issued the first edition of this booklet in 1975 to facilitate greater public familiarity with the bid protest process at GAO and we have revised it over the years to reflect changes in our bid protest procedures. This edition incorporates changes made to our Bid Protest Regulations, effective August 8, 1996, to implement the Federal Acquisition Reform Act of 1996 and the Information Technology Management Reform Act of 1996, as included in the National Defense Authorization Act for Fiscal Year 1996.

We have improved this edition of the booklet by providing additional and updated practice tips to assist parties participating in a bid protest at GAO. We also have updated the appendixes which contain a revised sample protective order and revised sample applications for access to material under a protective order.

Robert P. Murphy

General Counsel

THE BID PROTEST PROCESS

BACKGROUND

For almost 75 years, GAO has provided an objective, independent, and impartial forum for the resolution of disputes concerning the awards of federal contracts. Over the years, the decisions of the Comptroller General of the United States, the head of GAO, in bid protest cases have resulted in a uniform body of law applicable to the procurement process that is relied upon by the Congress, the courts, contracting agencies, and the public. Although protesters may be represented by counsel, filing a bid protest with GAO is easy and inexpensive and does not require the services of an attorney. In addition, matters can usually be resolved more quickly by protests filed with GAO than by court litigation.

This booklet is an informal, practical guide to the bid protest process at GAO; however, it is not the law. The legal rules governing this process are set forth in GAO's Bid Protest Regulations. Since 1985, GAO has had detailed regulations to inform protesters of the rules concerning where and how to file a protest, what to expect in the way of subsequent actions, and the time frames established for completion of those actions. These regulations were promulgated to implement the Competition in Contracting Act of 1984 and were revised to implement the requirement in the Information Technology Management Reform Act of 1996, as included in the National Defense Authorization Act for Fiscal Year 1996, that GAO issue bid protest decisions within 100 calendar days for any new protest filed with GAO on or after August 8, 1996. (In these regulations, all "days" are calendar days.) The revised regulations will appear in Title 4 of the Code of Federal Regulations (C.F.R.), Part 21, and are reproduced in this booklet for ease of reference.

GAO changes its regulations from time to time because of changes in applicable statutes, a binding court decision, or when experience dictates that a modification is appropriate. These changes are published in the Federal Register, and then incorporated into the Code of Federal Regulations, which is published annually and reflects the revisions or additions to the regulations that were published in the Federal Register during the preceding year. Because the regulations are published in the Federal Register, protesters and other parties are deemed to have "constructive knowledge" of them, meaning that they are expected to comply with the regulations, even if they have never actually read the regulations.

In deciding bid protests, GAO considers whether federal agencies have complied with statutes and regulations controlling government procurements. The main statutes controlling federal procurements are the Armed Services Procurement Act of 1947 and the Federal Property and Administrative Services Act of 1949, as amended, particularly by the Competition in Contracting Act of 1984, the Federal Acquisition Streamlining Act of 1994, and the Federal Acquisition Reform Act of 1996 and the Information Technology Management Reform Act of 1996, as included in the National Defense Authorization Act for Fiscal Year 1996. These statutes are found in the United States Code, titles 10 and 41, respectively, and are implemented by the Federal Acquisition Regulation (FAR) and individual agency regulations. GAO's Bid Protest Regulations govern GAO's handling of protests and impose certain requirements on contracting agencies, protesters, and others who participate in the bid protest process at GAO.

OVERVIEW OF THE BID PROTEST PROCESS

The bid protest process at GAO begins with the filing of a written protest. Unless the protest is dismissed because it is procedurally or substantively defective (e.g. the protest is untimely or the protest fails to clearly state legally sufficient grounds of protest), the contracting agency is required to file with GAO an agency report responding to the protest and to provide a copy of that report to the protester. The protester then has an opportunity to file written comments on the report. Other parties may be permitted to intervene, which means that they will also receive a copy of the report and will be allowed to file written comments on the report.

During the course of a GAO protest, as appropriate, GAO may schedule status or other informal types of conferences to resolve procedural matters and to obtain information material to the disposition of the protest. GAO also may find that a hearing is necessary to resolve factual and legal issues raised in the protest. If it decides to hold a hearing, GAO will usually conduct a pre-hearing conference to decide the issues that will be considered at the hearing, to identify the witnesses who will testify at the hearing, and to settle procedural questions. After the hearing, all parties will be allowed to submit written comments on the hearing.

After the record is complete, GAO will consider the facts and legal issues raised and will issue a decision, a copy of which will be sent to all parties participating in the protest. GAO may sustain the protest (that is, find that the agency violated a procurement statute or regulation and that the violation prejudiced the protester), in which case GAO will recommend appropriate corrective action. Alternatively, GAO may deny the protest or may dismiss the protest without reviewing the matter. GAO will issue its decision not later than 100 days from the date the protest was filed. The exact date on which GAO issues the decision depends on the urgency of the procurement, the complexity of the factual and legal issues raised in the protest, and GAO's work load.

FILING A PROTEST

WHO MAY PROTEST

Although many parties retain an attorney in order to benefit from the attorney's familiarity with GAO's bid protest process and with procurement statutes and regulations, an attorney is not required for purposes of filing a protest. However, where the record includes another company's proprietary information or the agency's source-selection-sensitive information, only attorneys (and then only if the attorneys are admitted under a protective order, as discussed below) will be allowed to see that

information.

WHAT TO PROTEST

Although most protests challenge the acceptance or rejection of a bid or proposal and the award or proposed award of a contract, GAO considers protests of defective solicitations (e.g. allegedly restrictive specifications, omission of a required provision, and ambiguous or indefinite evaluation factors), as well as certain other procurement actions (e.g. the cancellation of a solicitation). The termination of a contract may be protested if the protest alleges that the termination was based on improprieties in the award of the contract. 4 C.F.R. § 21.1(a). Where the agency involved has agreed in writing, GAO will consider protests concerning (1) awards of subcontracts by or for a federal agency, (2) sales by a federal agency, and (3) procurement actions by government entities which do not fall within the strict definition of federal agencies in 4 C.F.R. § 21.0(c). 4 C.F.R. § 21.13(a).

There are some matters that cannot be protested to GAO. The most common grounds for dismissal of a protest in whole or in part are set forth in 4 C.F.R. § 21.5.

PREPARATION OF A PROTEST

There is no prescribed form for filing a protest, except that the protest must be in writing. 4 C.F.R. § 21.1(b). Protests of different procurements must be separately filed. 4 C.F.R. § 21.1(f).

GAO does not require formal briefs or other technical forms of pleadings. However, at a minimum, a protest shall:

(1) Include the name, address, and telephone and facsimile (fax) numbers of the protester (or its representative, if any);

(2) Be signed by the protester or its representative;

(3) Identify the contracting agency and the solicitation and/or contract number;

(4) Set forth a detailed statement of the legal and factual grounds of protest, including copies of relevant documents;

(5) Set forth all information establishing that the protester is an interested party for the purpose of filing a protest;

(6) Set forth all information establishing the timeliness of the protest;

(7) Specifically request a ruling by the Comptroller General of the United States; and

(8) State the form of relief requested. 4 C.F.R. § 21.1(c).

In addition, a protest may include a request for a protective order, specific documents relevant to the protest, and a hearing. 4 C.F.R. § 21.1(d). In this regard, protesters must explain the relevancy of requested documents to their protest grounds and the reason a hearing is necessary to resolve the protest. Id.

The protest document must be clearly labeled if it contains information which the protester believes is proprietary, confidential, or otherwise not releasable to the public. In those cases, within 1 day after the filing of the unredacted protest with GAO, the protester must provide to GAO and the contracting agency a redacted version of the protest which omits such information. 4 C.F.R. § 21.1(g).

A party may request that GAO decide a protest using an express option schedule or other flexible alternative procedures, including establishing an accelerated schedule and/or issuing a summary decision. 4 C.F.R. § 21.10(a), (e).

(See figure in printed edition.)

WHEN TO PROTEST

The regulations set forth the timeliness requirements for filing protests at GAO. 4 C.F.R. § 21.2. Because bid protests may delay the procurement of needed goods and services, GAO, except under limited circumstances, strictly enforces these timeliness requirements.

Protests alleging improprieties in a solicitation must be filed prior to bid opening or the time set for receipt of initial proposals if the improprieties were apparent prior to that time. 4 C.F.R. § 21.2(a)(1). A solicitation defect that was not apparent before that time must be protested not later than 10 days after the defect became apparent. In negotiated procurements, if an alleged impropriety did not exist in the initial solicitation but was later incorporated into the solicitation by an amendment, a protest based on that impropriety must be filed before the next closing time established for submitting proposals. Id.

In all other cases, protests must be filed not later than 10 days after the protester knew or should have known the basis of protest (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is "requested and, when requested, is required" (that is, a statutorily required debriefing). In these cases, with respect to any protest basis which was known or should have been known before the statutorily required debriefing, the protester must not file its initial protest before the debriefing date offered to the protester, but must file its initial protest not later than 10 days after the date on which the debriefing was held. 4 C.F.R. § 21.2(a)(2).

The purpose of the exception to the timeliness rules for negotiated procurements is to encourage vendors to seek, and contracting agencies to give, early and meaningful debriefings prior to the vendor deciding whether or not to file a protest. Thus, in procurements conducted on the basis of competitive proposals in which a statutorily required debriefing is held, that is, where a debriefing is requested and, when requested, is required, a protester will always have up to 10 days after the debriefing to file its initial protest.

Special timeliness rules govern protests initially filed with the contracting agency. In those cases, the protest to GAO must be filed not later than 10 days after the protester learned of "initial adverse agency action." 4 C.F.R. § 21.2(a)(3). Deciding when adverse agency action occurs is straightforward when the protester receives oral or written notice that the agency is denying the agency-level protest. Protesters should keep in mind, however, that GAO views any action that makes clear that the agency is denying the agency-level protest as adverse agency action. Examples of adverse agency action include the agency's proceeding with bid opening or the receipt of proposals, the rejection of a bid or proposal, or the award of a contract despite the agency-level protest. Firms which have filed an agency-level protest and are considering filing a subsequent protest with GAO should be alert to any possible agency action that could be viewed as indicating that the agency is denying the agency-level protest.

Agency-level protests must be filed in accordance with GAO's timeliness rules at 4 C.F.R. § 21.2(a)(1) and (a)(2), unless the agency imposes a more stringent time for filing, in which case the agency's time for filing will control. Thus, even if a firm files a protest with GAO within 10 days of initial adverse agency action, GAO will consider the protest untimely if the agency-level protest was not timely filed under GAO's timeliness rules or under an agency's rules if those rules are stricter. 4 C.F.R. § 21.2(a)(3). For example, if a firm waits until after bid opening to file an agency-level protest of an apparent solicitation impropriety, even if the subsequent protest to GAO is filed within 10 days of the firm's learning that the agency has denied the agency-level protest, GAO will not consider a protest of that impropriety since the agency-level protest of the alleged impropriety was not filed prior to bid opening.

GAO may consider an untimely protest where exceptional circumstances beyond the protester's control caused the delay in filing the protest, or where the protest presents novel or significant issues of interest to the procurement community. 4 C.F.R. § 21.2(c). Protesters should be aware, however, that GAO will invoke these exceptions sparingly.

Finally, GAO recognizes that the North American Free Trade Agreement (NAFTA) contains a 10-working-day timeliness requirement which is inconsistent with GAO's timeliness rules. However, because of the flexibility of GAO's timeliness rules, GAO will afford a NAFTA protester all treaty rights for purposes of the timely filing of a protest.

(See figure in printed edition.)

(See figure in printed edition.)

Source: www.gao.gov

Category: Forex

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