TEN PROTEST RULES TO REMEMBER

Protests can be filed with the Government Accountability Office (GAO) or in the Court of Federal Claims (COFC).  If filed at GAO and a similar case is filed in the COFC, GAO will dismiss the protest  case at GAO.  If a contractor is unhappy with the result at GAO, it can file a similar protest at the COFC.  Here are some important rules to remember:

1. Protesting is an integral part of the acquisition system.  One of the best ways to illustrate this is by reference to when the U.S. District Courts first decided they had jurisdiction to hear protests (they no longer have this jurisdiction - it was transferred to the COFC).  The courts said disappointed bidders were acting as "private attorneys general" policing the system on behalf of the public.
2. Protests based on any impropriety in the solicitation must be protested prior to the closing time for receipt of proposals.
3. In all other cases, the GAO protest must be filed within 10 calendar days after the basis for the protest is know or should have been known.  Protesters have 10 days to file at GAO after a debriefing.
4. However, for a protester to avail itself of the automatic post award statutory stay of performance of an awarded contract, the protest must be filed at GAO within 10 days after award or 5 days after the debriefing, whichever is longer. Protesting before award stays the award. The agency can override the automatic stay but the override can be challenged in the COFC.  (The agency has a pretty heavy burden to override the stay.)
5. The timeliness rule at the COFC for solicitation protests is the same - the protest must be filed prior to proposal closing time.  However, there are no set timeliness rules at the COFC for other protests except there can be no relief in cases of inordinate delay.
6. Pursuing an agency protest does not extend the time for obtaining an automatic statutory stay.
7. According to GAO statistics, roughly 20 percent of protests are sustained on average over the years.
8. Most protests are won where a protester shows a statute or regulation is violated based on undisputed facts.
9. When an agency engages in "corrective action" after a protest is filed, GAO will dismiss the protest as academic.  However, a disappointed bidder may complain in the COFC or refile at GAO if the corrective action taken is objectionable.
10. At GAO, if the protest is sustained, it is likely GAO will recommend payment of protest costs and attorney fees.  At the COFC, a winning protester may get its bid preparation costs, but it will not get its attorney fees unless it qualifies under the Equal Access to Justice Act (EAJA).

On April 1, 2002, the Administrator of the Office of Procurement Policy (OFPP) admonished all senior procurement executives that the "filing of protests, the filing of claims, or the use of ADR, must not be considered by an agency in either past performance evaluations or source selection decisions."  (Emphasis added.)

In our experience, one should first "protest", probably informally (not through an agency protest) to the contracting officer, before filing at GAO.  Also, don't accuse the contracting officer of bias.  It takes "will nigh irrefragable " proof.  Look it up. It means nearly impossible.  Breach of good faith and fair dealing by failure to cooperate in the context of contract performance only requires proof of the breach. But at GAO, to show bias in the selection process, a protester had better have a smoking gun.

bill@spriggslawgroup.com           www.spriggslawgroup.com