Bid Protests: What Happens After Filing

So you filed a bid protest. You were incredibly upset at the government for its unfair, illegal treatment of your company. You called your attorney, determined the deadline for filing, and filed a timely protest. Now that you’re all fired up, what is the next step?

What happens next depends both on where you filed your protest and at what point in the procurement process. If you filed an agency protest, the agency will review your protest and write you a letter granting or denying the protest, as the case may be. An agency protest does not delay or suspend the procurement process. While deciding your protest, an agency is free to continue to review and evaluate proposals, to make award, or to permit contract performance to go forward.

There is no statutory or regulatory time limit within which agencies are required to respond to a protest. If you are not persistent, or if the agency is busy with end-of-year procurements, the agency might not decide your protest for several weeks or months. While waiting for a decision, you could be losing ground to your competitors.

Agency protests are informal proceedings. You file a protest by writing the agency a letter stating the facts of your case and your grounds of protest. The agency decides your protest by writing you a letter. The agency is not required to provide you with any relevant documents it may possess supporting your case, nor will the agency provide you with a hearing in which to present your arguments.

An agency protest is a useful tool to continue informal negotiations with an agency concerning the problems you have with its procurement. The limitations inherent in an agency protest, however, might propel you to take the further step of filing a protest at the General Accounting Office (GAO).

You can file with the GAO if the agency has denied your protest, or failed to decide your protest at all. Filing an agency protest is not a prerequisite to filing at the GAO; you can go the GAO directly without recourse to the agency. If you are filing at the GAO because the agency has denied your protest, you must file within 10 days after you received the agency’s denial.

A GAO protest is a far more formal proceeding. The case begins with your protest letter stating the relevant facts of your case, such as the solicitation or contract number, and name of the agency and contracting officer. The precise requirements for filing a GAO protest are found at 4 Code of Federal Regulations Part 21. It is of the utmost importance that you must provide the contracting officer with a copy of the protest within one day of filing.

Filing a GAO protest can suspend the procurement. If you have filed at the GAO before award has been made, or if you file within 10 calendar days after award, the agency must suspend the contract until the protest is decided. The agency can proceed with the procurement only if an agency official decides that the suspension of the procurement would adversely affect the national interest. Given this high standard, agencies rarely override suspensions.

In your GAO protest, you can also ask the agency to provide you with copies of documents you believe are relevant to your protest. For example, if your company was ejected from the procurement as outside of the competitive range, you can ask for the agency’s technical and management evaluations and scoring of your proposal. You can also request a hearing to address factual questions that would be difficult to resolve without the opportunity to present testimony or cross-examine witnesses.

Once the GAO receives your protest, it will send you an acknowledgment of protest that notes when the agency administrative report is due. The report is the agency’s formal reply to your protest. It generally consists of a factual rebuttal by the contracting officer and a legal argument by the agency’s attorney. The report must also include all documents that the agency believes are relevant to your case, together with the documents you requested in your protest.

Once you have received the report, you have 10 business days to file your comments. If the GAO has granted your request for a hearing, you will first have the hearing before filing your comments within 10 calendar days after the hearing. Your comments will consist of your rebuttal to the factual and legal arguments the agency has raised.

The case will be decided by a GAO staff attorney, with the approval of his or her supervisors. If your protest is sustained, the GAO may order the agency to repay the attorneys fees and bid preparation costs you incurred. The GAO must decide your protest within 100 calendar days after filing.

During an agency or GAO protest, you and the agency are free to settle your differences informally, which is often the best result. However, if the agency is recalcitrant and you firmly believe a violation of procurement law was committed, a protest will provide you with a forum to air your views, and may even provide the relief you seek.