Gao Bid Protests

For purposes of federal law, a bid protest involves a written objection to the conduct of government agencies in acquiring supplies and services for their direct use or benefit. Such conduct can include (1) soliciting or otherwise requesting offers; (2) cancelling such solicitations or requests; (3) awarding or proposing to award a contract; (4) terminating or cancelling a contract due to improprieties involving its award; or (5) converting functions performed by government employees to private sector performance. Bid protests are of perennial interest to Congress, in part, because of the effects of protests on agency missions and operations. Congressional interest can also be prompted by notable protests (e.g., SpaceX's recent protest of contracts for launch services), as well as by agency determinations not to follow any nonbinding recommendations made by the Government Accountability Office (GAO) in deciding protests. GAO is not the only forum with authority to hear bid protests involving federal acquisitions. The procuring agency and the U.S. Court of Federal Claims can also hear bid protests. However, GAO hears more protests than the Court of Federal Claims, the only other forum for which data are readily available. Thus, its protest procedures-which can differ somewhat from those of the procuring agencies and the Court of Federal Claims-are the focus of this report. Legislation and regulations establish what issues may be protested with GAO and who may bring a protest. As previously noted, by statute, GAO may hear complaints alleging violations of federal procurement law in federal acquisitions. However, it is expressly barred by regulation from hearing certain issues, such as challenges to small business size certifications. Any interested party-an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of, or failure to award, a contract-may file a protest. GAO is required by statute to provide for the "inexpensive and expeditious" resolution of protests, "[t]o the maximum extent practicable." Its practices permit "inexpensive" resolution, in part, by enabling interested parties to represent themselves, rather than rely on attorneys. For example, GAO does not require "formal briefs" or "other technical forms" of pleadings or motions. It is also subject to statutory mandates that promote "expeditious" resolution, in part, by requiring GAO to issue final decisions within 65 to 100 days after the protest was filed. Filing a GAO protest may trigger an automatic stay of contract award or performance that lasts for the duration of the protest. Such automatic stays are unique to bid protests filed with GAO and help account for GAO's popularity as a protest forum. Agencies may, however, override these stays upon determining that urgent and compelling circumstances will not permit waiting for GAO's decision, or performance of the contract is in the best interests of the United States. GAO may dismiss, deny, or sustain a protest. When a protest is dismissed or denied, the procuring agency may generally proceed with the challenged action. In contrast, when a protest is sustained, GAO may recommend specific actions (e.g., amending the solicitation, reevaluating proposals). Such recommendations are not legally binding because the separation of powers doctrine precludes legislative branch agencies, such as GAO, from controlling the actions of executive branch agencies. However, the agency is required by statute to notify GAO if GAO's recommendations are not fully implemented, and GAO, in turn, must notify Congress.

The delay of contract award or performance triggered by a GAO protest, coupled with the increasing number of GAO protests, has also prompted concerns about the potential impact of protests upon government agency operations, especially in the Department of Defense. [...] The increase in the effectiveness rate could indicate that not only are the number of protests increasing but the number of protests that have merit is increasing. [...] The agency then evaluates the bids or proposals based on the criteria set forth in the solicitation and awards a contract to the winning firm.14 In an effort to protect the integrity of the procurement system, the FAR and federal law provide mechanisms for contractors to object to contract awards. [...] By 2001, Congress had removed bid protest jurisdiction from the General Services Board of Contract Appeals and the U. S. District Court, leaving GAO the sole government-wide forum for hearing administrative protests and the Court of Federal Claims (COFC) the only judicial forum for hearing such protests.17 Companies can also file a protest with the agency awarding the contract, and under certain c [...] R2 is a descriptive measure between 0 and 1. The closer the R2 value is to one, the better the fit of the trend line to the data.

This report provides an overview of the time frames and procedures in a Government Accountability Office (GAO) bid protest, including (1) what issues can be protested with GAO; (2) who can file or be a party to a GAO protest; (3) the procedures for bringing and resolving GAO protests; (4) the time frames involved in GAO protests; (5) the automatic stay of contract award or performance triggered by a GAO protest, as well as the basis for agency overrides of automatic stays and judicial review of agency override determinations; (6) the basis and effects of GAO decisions; and (7) reconsideration and "appeal" of GAO decisions.

Protests of high-profile awards and reports that the number of protests is increasing have recently prompted congressional and public interest in bid protests, particularly bid protests filed with the Government Accountability Office (GAO). This report is one of two providing Congress with background on the GAO bid-protest process. It provides an overview of the timeframes and procedures in a GAO bid protest, including several issues enumerated in the report's introduction.

"A guide to the three primary forums where most federal procurement decisions are contested"--

A bid protest is a formal, written objection to an agency's solicitation for bids or offers, cancellation of a solicitation, or award or proposed award of a contract. Bid protests only became part of the federal procurement system in the early 20th century, more than 100 years after the federal government began purchasing goods and services. However, Congress has authorized bid protests in recognition of their role in providing redress to disappointed bidders and offerors and in ensuring the integrity of the federal procurement process. This book provides background on the GAO bid-protest process and examines timeframes, procedures, what issues can be protested, who can file or be a party to a GAO protest and others parameters.