GAO Bid Protests: An Overview of Time
Frames and Procedures
Kate M. Manuel
Legislative Attorney
Moshe Schwartz
Specialist in Defense Acquisition
June 30, 2011December 2, 2014
Congressional Research Service
7-5700
www.crs.gov
R40228
CRS Report for Congress
Prepared for Members and Committees of Congress
GAO Bid Protests: An Overview of Time Frames and Procedures
Summary
Bid protests, especially bid protests filed with the Government Accountability Office (GAO),
have recently received increased congressional scrutiny due to protests of high-profile awards and
reports that the number of protests is increasing. The potential 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 impact of protests upon agency operations, especially in the
Department of Defense. Additionally, questions have recently arisen about GAO’s jurisdiction
over protests challenging the issuance of task and delivery orders valued in excess of $10 million.
The 111th Congress enacted legislation (P.L. 111-383) extending certain provisions governing
GAO’s jurisdiction over orders issued by defense agencies that otherwise would have sunset in
May 2011. The 112th Congress considered, but did not enact, similar legislation regarding the
orders of civilian agencies (H.R. 899, S. 498). However, on June 14, 2011, GAO found that
Congress’s failure to extend the sun-setting provisions means that it has jurisdiction over orders
of any value issued by civilian agencies, not that it lacks jurisdiction over orders valued in excess
of $10 million issued by civilian agencies.
GAO, the contracting agencies, and the Court of Federal Claims all have authority to hear bid
protests. However, GAO hears more protests annually than the Court of Federal Claims, the only
other forum for which data are readily available. Legislation and regulations establish what issues
may be protested with GAO and who may bring a protest. GAO may hear claims of alleged
illegalities or improprieties in solicitations, cancellations of solicitations, or awards or proposed
awards of contracts. However, it is barred from hearing certain issues, such as challenges to small
business size certifications. Any “interested party”—or actual or prospective bidder or offeror
whose direct economic interest would be affected by the award of the contract or by failure to
award it—may file a protest. Procedures for filing and conducting GAO protests are designed to
ensure “inexpensive and expeditious resolution of [bid] protests.” Protesters need not file formal
briefs or technical pleadings, can represent themselves, and can have protests decided without
hearings. All protests are to be resolved within 100 calendar days of filing, and deadlines for
mandatory and optional events within the GAO bid-protest process ensure decisions can be
reached within this time frame.
Filing a GAO protest generally triggers an automatic stay of contract award or performance
during the pendency of the protest. A similar stay does not result when protests are filed with the
Court of Federal Claims. However, agencies can override stays because urgent and compelling
circumstances will not permit waiting for GAO’s decision, or because performance of the contract
is in the best interests of the United States. Agencies must inform GAO of their override
decisions, but GAO cannot prevent an agency override.
GAO may deny or sustain a protest. A denial allows the agency to proceed with the challenged
award. When GAO sustains a protest, it also makes recommendations to the agency about the
challenged award, such as re-competing the contract or issuing a new solicitation. GAO’s
recommendations are not legally binding upon the agency 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 to notify GAO if it does not fully implement
GAO’s recommendations. GAO is, then, to inform Congress of agency noncompliance. Agencies
comply with GAO recommendations in most protests. Protesters disappointed with GAO’s
decision can seek reconsideration from GAO. They can also “appeal” GAO’s decision by filing a
bid protest with the Court of Federal Claims.
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GAO Bid Protests: An Overview of Time Frames and Procedures
Contents
Introduction ................................................................................................................................1
Background ................................................................................................................................2
Historical Development of Federal Bid-Protest Mechanisms .................................................2
Purposes of Bid-Protest Processes .........................................................................................3
The GAO Bid-Protest Process .....................................................................................................4
What Issues Can be Protested with GAO? .............................................................................4
Who Can File or Be a Party to a GAO Protest?......................................................................5
Procedures for Bringing and Resolving GAO Protests: “Inexpensive Resolution”..................6
Time Frames Involved in GAO Protests: “Expeditious Resolution” .......................................7
Initial Filings by Interested Parties ..................................................................................7
GAO Notice to the Agency..............................................................................................8
Agency’s Response and Protester’s Reply .......................................................................8
Issuance of GAO’s Decision on a Protest.........................................................................9
Time Frames for Other Optional Events in the GAO Bid-Protest Process....................... 10
Automatic Stays of Contract Award or Performance During GAO Protests .......................... 10
Agency Override of Bid-Protest Stays ........................................................................... 11
GAO and Agency Override Determinations................................................................... 13
Judicial Review of Agency Override Determinations..................................................... 13
Basis and Effects of GAO Decisions ................................................................................... 14
Denials, Sustainments, and GAO Recommendations ..................................................... 14
Legal Effect of GAO Recommendations ....................................................................... 15
Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act..................................................................................... 17
Reconsideration and “Appeal” of GAO Decisions ............................................................... 18
Reconsideration of GAO Decisions ............................................................................... 18
“Appeal” of GAO Decisions ......................................................................................... 19
Tables
Table 1. Time Frames of Important Events in the GAO Bid-Protest Process.................................9
Table 2. Examples of Procurements Involving “Urgent and Compelling Circumstances”
or the “Best Interests of the United States” ............................................................................. 12
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt GAO
Recommendations Per Fiscal Year.......................................................................................... 16
Table 4. Comparative Number of Requests for Reconsideration and Protests Received
and Closed by GAO Per Fiscal Year ....................................................................................... 19
Contacts
Author Contact Information ...................................................................................................... 20
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GAO Bid Protests: An Overview of Time Frames and Procedures
Introduction
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). The number of protests filed with GAO increased by
20% between FY2008 and FY2009 and by 16% between FY2009 and FY2010, in part because of
GAO’s recently expanded jurisdiction over task and delivery order, A-76, and Transportation
Security Administration protests.1 Some of these protests involved high-profile procurements,
such as the Air Force’s aerial refueling tanker and combat, search, and rescue (CSAR-X)
helicopter,2 and prompted congressional hearings or proposed legislation. 3 The Department of
Defense (DOD) has also expressed concerns about the effects that the delay of contract award or
performance frequently triggered by a GAO protest have upon DOD operations.4 Additionally,
questions have recently arisen about GAO’s jurisdiction over protests challenging the issuance of
task and delivery orders valued in excess of $10 million. The 111th Congress enacted legislation
extending certain provisions governing GAO’s jurisdiction over orders issued by defense
agencies that otherwise would have sunset in May 2011.5 The 112th Congress considered, but did
not enact, similar legislation regarding the orders of civilian agencies (H.R. 899, S. 498).
However, on June 14, 2011, GAO found that Congress’s failure to extend the sun-setting
provisions means that it has jurisdiction over orders of any value issued by civilian agencies, not
that it lacks jurisdiction over orders valued in excess of $10 million issued by civilian agencies.6
1
GAO, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2010, Nov. 23, 2010, available at
http://www.gao.gov/special.pubs/bidpro10.pdf (noting that GAO handled 2,299 cases in FY2010). This includes 189
protests filed as a result of GAO’s expanded jurisdiction over certain task and delivery order protests.
2
See, e.g., Dana Hedgepeth & Robert O’Harrow, Jr., Air Force Faulted over Handling of Tanker Deal, Washington
Post, June 19, 2008, at A1; Michael Fabey, Lockheed Martin Files Another CSAR-X Protest, Aviation Week, June 12,
2007, available at http://www.aviationweek.com/aw/generic/story.jsp?id=news/CSAR061207.xml&headline=
Lockheed%20Martin%20Files%20Another%20CSAR-X%20Protest&channel=defense.
3
See, e.g., Air Force Aerial Refueling Tanker Replacement: Hearing before the House Committee on Armed Services,
July 10, 2008; KC-X Tanker Recompete Act, H.R. 6426, 110th Congress, at §2(a).
4
Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under Secretaries of
Defense, Aug. 24, 2007, available at http://acquisition.navy.mil/rda/content/download/5263/23838/file/
enhancing%20competition%201-18-2008.pdf (describing bid protests as “extremely detrimental to the warfighter and
taxpayer” and stating that “[t]he Defense Department must take steps in an effort to avoid these protest situations”).
Partly in response to DOD’s concerns, the House Armed Services Committee of the 110th Congress requested, when
authorizing DOD’s budget for FY2009, that GAO investigate and report on the impact of bid protests on DOD. See
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009: Report of the Committee on Armed
Services, House of Representatives, on H.R. 5658, at 394-95 (2008). GAO issued its report on April 9, 2009, finding
that its existing authorities were sufficient to deal with allegedly frivolous protests and that further attempts to
discourage such protests could “have the unintended consequences of discouraging participation in federal contracting
and, in turn, limiting competition.” GAO, Report to Congress on Bid Protests Involving Defense Procurements, Apr. 9,
2009, available at http://www.gao.gov/decisions/bidpro/401197.pdf. However, despite GAO’s report, concerns about
“frivolous” GAO protests have reportedly recently been increasing, particularly among contractors. See, e.g., Industry’s
Wish List for Procurement Reform, Wash. Tech., Nov. 20, 2009, available at http://washingtontechnology.com/blogs/
editors-notebook/2009/11/gordon-ofpp-wish-list.aspx (listing “address[ing] the growing number of contract protests” as
one of industry’s top wishes); TSA Infrastructure Contract Enters the Ridiculous Zone, Wash. Tech., Nov. 19, 2009,
available at http://washingtontechnology.com/blogs/editors-notebook/2009/11/tsa-stops-work-again.aspx (describing
how work on one particular contract was started, stopped, resumed, and stopped a second time due to protest activity).
5
Ike Skelton National Defense Authorization Act for Fiscal Year 2011, P.L. 111-383, §825, 124 Stat. 4270 (Jan. 7,
2011) (codified at 10 U.S.C. §2404c(e)(3)) (“Paragraph (1)(B) and paragraph (2) of this subsection shall not be in
effect after September 30, 2016.”).
6
Technatomy Corp., B-405130 (June 14, 2011). In a protest of an order placed under a civilian agency contract heard
(continued...)
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GAO Bid Protests: An Overview of Time Frames and Procedures
This report is one of two providing Congress with background on the GAO bid-protest process. It
provides an overview of the time frames and procedures in a 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. Its companion report is CRS Report R40227, GAO Bid Protests: Trends,
Analysis, and Options for Congress, by Moshe Schwartz and Kate M. Manuel, which analyzes
recent trends in bid protests filed with GAO, particularly protests involving DOD.7
Background
A bid protest is a formal, written objection to an agency’s solicitation for bids or offers,
cancelation of a solicitation, or award or proposed award of a contract.8 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. By statute, three administrative and
judicial forums have authority to hear bid protests against the federal government: the procuring
agency, GAO, and the Court of Federal Claims. 9
Historical Development of Federal Bid-Protest Mechanisms
GAO first began hearing bid protests in the early 20th century on the theory that its authority to
settle and adjust “all claims and demands” against the United States encompassed bid protests.10
The federal courts did not then hear protests, although at least some agencies did. In fact, after
GAO first began hearing bid protests, the federal courts held that they lacked jurisdiction to hear
(...continued)
after the sunset date had passed, the Department of Defense (DOD) asserted that, because Congress had not enacted
legislation extending the sunset date as to the orders of civilian agencies, GAO’s jurisdiction to hear protests
concerning task and delivery orders valued in excess of $10 million issued under civilian agency contracts expired on
May 27, 2011. GAO disagreed, finding that the sunset provision applied to the entire subsection, not just the part of it
authorizing GAO to hear protests of task and delivery orders valued in excess of $10 million. Under GAO’s reading,
what expired in May 2011 was the provision of the Federal Acquisition Streamlining Act (FASA) “limiting” its
jurisdiction over task order protests to those that increased the scope, period, or maximum value of the contract, as
amended by the National Defense Authorization Act (NDAA) for FY 2008, which “expanded” GAO’s jurisdiction to
include protests of orders valued in excess of $10 million. According to GAO, the expiration of this provision means
that it may hear protests concerning orders of any value under civilian agency contracts, regardless of whether they
increase the scope, period or maximum value of the contract. It remains to be seen whether the executive branch adopts
GAO’s interpretation of FASA, as amended by the NDAA for FY2008, or how a court might view any challenge to
GAO’s interpretation of these statutes.
7
For more on the GAO generally, see CRS Report RL30349, GAO: Government Accountability Office and General
Accounting Office, by Frederick M. Kaiser.
8
31 U.S.C. §3551(1)(A)-(D).
9
The jurisdiction of the federal district courts over bid protests expired on January 1, 2001. See Administrative Dispute
Resolution Act of 1996, P.L. 104-320, §12(d), 110 Stat. 3875 (Oct. 19, 1996).
10
The Budget and Accounting Act of 1921, P.L. 67-13, §305, 42 Stat. 20, 24 (June 10, 1921).
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them. In Perkins v. Lukens Steel Company, the Supreme Court found that federal courts could not
hear bid protests because the existing procurement laws did not confer standing on actual or
potential bidders or offerors who had been disappointed in their dealings with the federal
government.11 The Court said that these procurement laws were strictly for the government’s
benefit, “for the purpose of keeping its own house in order.”12
Several decades later, the federal courts came to hold that the Administrative Procedure Act
(APA) of 1946 authorized them to hear bid protests,13 and Congress later explicitly granted bid
protest jurisdiction to GAO with the Competition in Contracting Act (CICA) of 1984.14 However,
GAO’s long history of handling bid protests, coupled with several unique aspects of the GAO
bid-protest process, most notably the stay of contract award or performance that generally results
from the filing of a GAO protest, make it the primary locus for federal bid protests.
Purposes of Bid-Protest Processes
Although disappointed bidders or offerors would generally have no right to protest if Congress
did not provide for this right, Congress has chosen to authorize several administrative or judicial
forums to hear bid protests for several reasons. First, protest mechanisms ensure that entities
doing business with the government can air their complaints about governmental contracting
processes and obtain relief. Without such mechanisms, certain frustrations that citizens have with
their government could remain unaddressed. Additionally, absent such mechanisms, entities
might be less willing to do business with the government, which could diminish competition for
government contracts and drive up prices. 15 Second, protest mechanisms enhance the
accountability of procurement officials and government agencies by highlighting and correcting
mistakes and misconduct. This accountability helps to ensure the integrity of the procurement
system. If the government’s procurement system were perceived as corrupt or ineffective,
contractors might be less willing to compete for government contracts, and the price at which the
government acquires goods and services could increase. A corrupt or ineffective procurement
system could also waste taxpayers’ money.
These benefits of bid protests are not costless, however; protests can impede the prompt and
efficient acquisition of goods and services needed by the government. Particularly when award or
performance of a contested contract is stayed by the filing of a bid protest, as happens with many
GAO protests, protests can delay agency procurement actions. Protests also require agency
officials to spend time in explaining their conduct to disappointed bidders and offerors and in
defending their conduct before administrative or judicial forums. Moreover, fear of possible
protests may increase the time and energy that agencies expend in documenting their procurement
11
310 U.S. 113, 132 (1940).
Id. at 127.
13
Although Congress enacted the APA in 1946, it was not until 1970 that the federal district courts held that the APA
gave them jurisdiction to hear bid protests. See Scanwell Labs., Inc. v. Schafer, 424 F.2d 859, 865-69 (D.C. Cir. 1970).
14
CICA was enacted as part of the Deficit Reduction Act of 1984, P.L. 98-369, §§2701-2753, 98 Stat. 1175 (1984)
(codified, in part, at 31 U.S.C. §3556). Certain specific issues relating to the award of federal contracts are to be
protested to other agencies, rather than the bid-protest forums. Size certification determinations for small businesses,
for example, are to be protested with the Small Business Administration. See 13 C.F.R. §121.1001.
15
For more on the benefits to the government of competition in the source-selection process, see generally CRS Report
R40516, Competition in Federal Contracting: An Overview of the Legal Requirements, by Kate M. Manuel.
12
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decisions. Congress has, however, historically viewed the benefits of bid protests as outweighing
these costs.
The GAO Bid-Protest Process
CICA charges GAO with “provid[ing] for the inexpensive and expeditious resolution of [bid]
protests” to “the maximum extent practicable.”16 GAO has attempted to meet these goals through
the use of time frames and procedures partly prescribed by statute and partly established by
administrative rule making.17
What Issues Can be Protested with GAO?
Under CICA, disappointed bidders or offerors can protest18 to GAO about alleged illegalities or
improprieties in (1) solicitations or other requests by federal agencies for offers for contracts for
goods or services, (2) cancellations of solicitations or other requests for offers by federal
agencies, (3) awards or proposed awards of contracts by federal agencies, or (4) terminations or
cancellations of contract awards by federal agencies if the protest alleges that the termination or
cancellation was based on improprieties in the contract’s award.19 The alleged and protested
illegality or impropriety can exist prior to the contract award, as when a contractor claims that
some aspect of the solicitation would improperly disadvantage it in competing for the contract.
Alternately, the alleged and protested illegality or impropriety can arise with the contract, as when
a contractor claims that the government failed to follow the rules for the competition or otherwise
acted improperly in awarding the contract to the protestor’s competitor. Starting in FY2008, under
additional jurisdiction granted to GAO by Congress, protested illegalities or improprieties could
include matters relating to agencies’ issuance of task orders, contracting out under Office of
Management and Budget (OMB) Circular A-76, and Transportation Security Administration
contracts.20
GAO regulations, however, exclude certain issues from GAO protests even when these issues are
integrally linked to the formation of a government contract. These issues include the following:
•
challenges to small business size standards and standard industrial classifications;
issuance of or refusal to issue certificates of competency under Section 8(b)(7) of
the Small Business Act;21 and determinations to procure particular requirements
16
31 U.S.C. §3554(a)(1).
Compare 31 U.S.C. §3554(a)(1) (establishing 100-day timeframe for GAO decision) with 4 C.F.R. §21.2(a)(2)
(establishing that protests must generally be filed within 10 days after the basis for protesting was known or should
have been known).
18
A protest is, by definition, a written objection. 31 U.S.C. §3551(1).
19
31 U.S.C. §3551(1)(A)-(D).
17
20
See Bid Protest Annual Report, supra note 1. GAO’s jurisdiction over certain protests involving the issuance of task
and delivery orders valued in excess of $10 million, in particular, is temporary. See supra notes 5-7 and accompanying
notes.
21
The issuance of certificates of competency is part of the process of determining whether certain would-be
government contractors are responsible. For more on responsibility determinations, see CRS Report R40633,
Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by Kate
M. Manuel.
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through the Minority Small Business and Capital Ownership Development
Program (commonly known as the 8(a) Program);22
•
alleged procurement integrity violations which the protester did not to report to
the agency responsible for the alleged violations within 14 days of discovering
them;23
•
procurements by agencies other than federal agencies as defined in Section 3 of
the Federal Property and Administrative Services Act;24
•
awards or proposed awards of subcontracts, unless the agency awarding the
prime contract had requested in writing that subcontract protests be handled by
GAO as non-statutory protests;25
•
suspensions or debarments of contractors by agencies;26 or
•
decisions by agency tender officials to file or not file protests in connection with
public-private competitions. 27
Who Can File or Be a Party to a GAO Protest?
By statute, a GAO bid protest may be filed by any “interested party,”28 or any “actual or
prospective bidder or offeror whose direct economic interest would be affected by the award of
the contract or by failure to award the contract.”29 This focus upon direct economic interest in
determining who is an interested party means that a larger number of contractors can bring preaward protests than can bring post-award protests. Prior to the award, contractors who are
considering bidding or offering generally qualify as interested parties. After an award, however,
only contractors who bid on the contract or submitted offers qualify as interested parties because
only they were eligible for the award.30 Moreover, because of the focus on direct economic
interest, GAO often requires that contractors both (1) have bid or offered and (2) be next in line
22
These issues are generally protested with the Small Business Administration (SBA). For more information on the
8(a) Program, see CRS Report R40744, The “8(a) Program” for Small Businesses Owned and Controlled by the
Socially and Economically Disadvantaged: Legal Requirements and Issues, by John R. Luckey and Kate M. Manuel.
23
Such violations include the release of source selection information or contractor bid or proposal information by the
agency; undisclosed contacts between employees involved in procurements over $150,000 and bidders or offerors
regarding future employment; or employment by the contractor of former agency officials who were involved in
procurements or administration of contracts valued at $10 million or more within one year of their involvement. See 41
U.S.C. §423.
24
P.L. 81-152, 63 Stat. 377 (1949). Examples of such agencies include the U.S. Postal Service and the Federal Deposit
Insurance Corporation.
25
An agency can agree in writing to have other protests—known as non-statutory protests—decided by GAO. 4 C.F.R.
§21.13(a).
26
For more on debarment and suspension, see CRS Report RL34753, Debarment and Suspension of Government
Contractors: An Overview of the Law Including Recently Enacted and Proposed Amendments, by Kate M. Manuel.
27
4 C.F.R. §21.5(a)-(k). For more on public-private competitions, see CRS Report RL32833, Competitive Sourcing
Statutes and Statutory Provisions, by L. Elaine Halchin.
28
31 U.S.C. §3553(a).
29
31 U.S.C. §3551(2)(A).
30
GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 5 (8th ed. 2006), available at
http://www.gao.gov/decisions/bidpro/bid/d06797sp.pdf.
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for the award if the protest is sustained for them to be recognized as interested parties.31 Because
they lack these direct economic interests, non-contractors—such as concerned citizens and
potential subcontractors on federal contracts—are not interested parties who can bring GAO bid
protests.
In addition to prospective or actual bidders or offerors, other parties to GAO bid protests include
the agency conducting the challenged procurement and, potentially, one or more intervenors.
Intervenors enter protests to protect their status as awardees or potential awardees under the
protested contract. When the contract has not yet been awarded, GAO permits all bidders or
offerors who “appear to have a substantial prospect of receiving an award if the protest is denied”
to intervene. 32 Similarly, when the contract has been awarded, GAO permits the winning bidder
or offeror to intervene. 33
Procedures for Bringing and Resolving GAO Protests:
“Inexpensive Resolution”
“No formal briefs or other technical forms of pleading or motion are required” for an interested
party to file a GAO bid protest.34 For GAO to consider its protest, a protestor need only (1)
identify the contracting agency and the solicitation or contract number; (2) set forth a detailed
statement of the legal and factual grounds of protest, including copies of relevant documents; (3)
establish that the protester is an interested party making a timely protest; and (4) state the relief
requested (e.g., termination or re-competition of a contract).35 In their filings, protesters may also
request protective orders, specific documents from the agency, or a hearing before GAO.36
GAO allows contractors to represent themselves in bid protest proceedings and to have their
protests resolved based on paper filings without a hearing. Although they may use the services of
an attorney in preparing or prosecuting a GAO protest, protesters are not required to do so37 and
can avoid the costs of attorneys’ fees by representing themselves. Similarly, resolution of the
protest based upon documents filed by the protester and the agency, as opposed to by hearing,
allows protesters to avoid the costs of traveling to Washington, D.C., where GAO is located, for
hearings. 38 Hearings are relatively rare in GAO protests. Between FY2005 and FY2009, only 6%
to 12% of GAO cases annually entailed hearings. 39 Moreover, when held, hearings are less formal
31
See, e.g., Arora Group, B-288127 (Sept. 14, 2001) (recognizing a bidder whose proposal was ranked fifth as an
interested party only because its protest challenged the agency’s application of the evaluation criteria in general and, if
successful, could have placed the contractor in line for the award).
32
4 C.F.R. §21.0(b)(1).
33
Id.
34
4 C.F.R. §21.1(f).
35
4 C.F.R. §21.4(c)(1)-(8).
36
4 C.F.R. §21.1(d)(1)-(3).
37
Bid Protests at GAO, supra note 30, at 3. However, only attorneys admitted under protective orders are permitted to
see another company’s proprietary information, or the agency’s source-selection-sensitive information, during a GAO
protest. Id. at 5-6.
38
4 C.F.R. §21.7(a) (allowing parties to a bid protest to request a hearing). See also 4 C.F.R. §21.7(c) (noting that,
although hearings are generally conducted in Washington, D.C., they can sometimes be conducted in other locations,
by telephone, or by other electronic means).
39
Bid Protest Annual Report, supra note 1.
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than hearings in federal court, with the parties and GAO determining at a pre-hearing conference
what procedures will be followed, what issues will be considered, and what witnesses will
testify.40
All these factors, as well as the strict time frames for resolving GAO protests, described below,
can make GAO a less expensive venue in which to conduct bid protests than the Court of Federal
Claims. Protesters in the Court of Federal Claims are, in contrast, generally more likely to be
represented by attorneys and have hearings on their protests.41 Their protests can also take longer
to resolve. 42 However, some commentators have wondered (1) whether GAO’s comparatively
quicker and less formal procedures make GAO more likely than the Court of Federal Claims to
issue erroneous decisions and (2) whether GAO is the best forum for “awards involving complex
systems or services with values rising to the hundreds of millions of dollars or more.”43
Time Frames Involved in GAO Protests: “Expeditious Resolution”
GAO is to adhere to strict time frames—resolving protests within 100 calendar days of their
filing—to ensure that protesters receive prompt resolution of their claims and prevent bid protests
from delaying the procurement of necessary goods and services by government agencies. 44 A
protester who files a bid protest with the Court of Federal Claims could, in contrast, potentially
wait over 100 days before the court hears its case45 and would not have the award or performance
of the contract stayed for the duration of the protest, as generally happens with GAO protests.
This section outlines the time frames for the main steps in GAO bid protests.
Initial Filings by Interested Parties
The time frames within which interested parties must, by regulation, file bid protests with GAO
depend upon the circumstances prompting the protest. Alleged improprieties in solicitations that
are apparent prior to bid opening or the time set for receipt of initial proposals must be protested
before the bid opening or the time set for receipt of initial proposals.46 Other alleged improprieties
must be protested no later than 10 calendar days after they become known, or should have
become known, whichever is earlier, unless the protest challenges “a procurement conducted on
the basis of competitive proposals under which a debriefing is requested and, when requested, is
required.”47 Protests filed after these deadlines are untimely, and GAO generally dismisses
40
4 C.F.R. §21.7(b).
41
Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 Wis. L. Rev.
1225, 1232 (2007).
42
Id.
43
Id. at 1241.
44
Bid Protests at GAO, supra note 30, at 7.
45
Metzger & Lyons, supra note 41, at 1232. In many cases, judges on the Court of Federal Claims hold some sort of
hearing on the merits within 60 to 90 days of the protest’s filing. The court does not always render its decision at the
same time as the hearing, however. The decision could come weeks or months later.
46
4 C.F.R. §21.2(a)(1). When the alleged improprieties did not exist in the initial solicitation, but were subsequently
incorporated into it, the protest must be filed prior to the next closing time for receipt of proposals following the
incorporation. Id.
47
4 C.F.R. §21.2(a)(2). A debriefing is a meeting between unsuccessful bidders or offerors and agency officials
wherein agency officials explain why the proposal of the bidder or offeror was not selected. When contractors protest
with the GAO after an earlier protest with the contracting agency, that protest must also be filed with GAO within 10
(continued...)
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them. 48 GAO considers untimely protests only when the protester shows good cause for its late
filing or when GAO determines that the protest raises “issues significant to the procurement
system.”49 However, would-be protesters that miss GAO filing deadlines can sometimes still file
bid protests with the Court of Federal Claims, provided their filing there is timely. 50
GAO Notice to the Agency
Once a protest is filed with GAO, it must notify the federal agency whose contracting activities
are being protested within one working day of receiving the protest.51 This notice is important for
two reasons. First, the agency’s receipt of GAO’s notice generally marks the beginning of an
automatic stay of the award or performance of the contract. Under CICA, if a protest is filed
within 10 days of the contract award or within 5 days of a debriefing, a federal agency that has
been notified of a GAO bid protest may not award or authorize performance of the contested
contract until GAO decides the protest.52 Second, the agency’s receipt of GAO’s notice marks the
beginning of the 30-calendar-day period within which the agency must generally respond to the
GAO protest.53
Agency’s Response and Protester’s Reply
When responding to a GAO bid protest, the agency must file a report with GAO, generally within
30 calendar days of receiving notice of the protest.54 Under GAO regulations, this report must
include
... the contracting officer’s statement of the relevant facts, including a best estimate of the
contract value, a memorandum of law, and a list and a copy of all relevant documents, or
portions of documents, not previously produced, including, as appropriate: the protest; the
bid or proposals submitted by the protester; the bid or proposal of the firm which is being
considered for the award, or whose bid or proposal is being protested; all evaluation
documents; the solicitation, including the specifications; the abstract of bids or offers; and
any other relevant documents.55
(...continued)
calendar days of the agency’s denying this protest unless the agency had set a shorter timeframe for protesters’
“appeal” of agency decisions to GAO. 4 C.F.R. §21.2(a)(3).
48
4 C.F.R. §21.2(b)-(c).
49
4 C.F.R. §21.2(c).
50
But see Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (holding that a party that has the
opportunity to object to the terms of a government solicitation containing a patent error and fails to do so before the
close of bidding waives its right to raise the same objection in a bid protest).
51
31 U.S.C. §3553(b)(1). The protester must also submit a copy of the protest to the agency within one working day of
filing the protest with GAO. 4 C.F.R. §21.1(e).
52
31 U.S.C. §3553(c)(1) & (d)(1).
53
31 U.S.C. §3553(b)(2)(A). This 30-day response period can be lengthened when the Comptroller General determines,
based upon the agency’s written request, that the circumstances of the protest require a longer period. 31 U.S.C.
§3553(b)(2)(B). The response period can also be shortened to 20 days when the Comptroller General determines that
the protest is suitable for “express” resolution and notifies the agency of this determination. 31 U.S.C. §3553(b)(2)(C).
54
31 U.S.C. §3553(b)(2)(A).
55
4 C.F.R. §21.3(c).
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The agency can avoid filing this report only when it, or an intervenor, requests and is granted
dismissal of the protest by GAO before the report is due. 56
After the agency’s report is filed, the protester then has 10 calendar days to submit written
comments on the agency’s report to GAO.57 If the protester fails to submit such comments, GAO
is required, by its own regulations, to dismiss the protest.58
Issuance of GAO’s Decision on a Protest
GAO generally must issue its final decision on a bid protest within 100 calendar days of the
protest’s filing.59 This time frame can be shortened to 65 calendar days if the Comptroller General
determines, either at the request of a party or upon his or her own initiative, that the protest
should be treated under the “express option,” which allows for faster-than-usual decisions. 60 GAO
can also dismiss a protest that is frivolous, or that does not state, on its face, a valid basis for
protest, at any time, 61 even before the agency files its report with GAO.62 GAO can similarly
issue a summary decision on a protest at any time. 63
The importance that Congress attaches to the expeditious resolution of protests by GAO is
indicated by the fact that GAO would have to report to Congress on any instance in which GAO
fails to issue its final decision on a protest within 100 calendar days of the protest’s filing.
According to GAO, GAO has never had to make such a report to Congress.
Table 1.Time Frames of Important Events in the GAO Bid-Protest Process
(For Protests Other than Those Based on Improprieties in Solicitations That Were Apparent Prior to the
Bid Opening or the Time Set for Receipt of Initial Proposals)
Event
Normal Time Frames
Express Time Frames
Filing of protest with GAO
No more than 10 calendar days after
the protested conduct
No more than 10 calendar days after
the protested conduct
Notice of the protest sent from
GAO to the agency
Within 1 working day of the protest’s
being filed
Within 1 working day of the protest’s
being filed
Agency’s report on the protested
procurement sent to GAO
Within 30 calendar days of the
agency’s receiving notice of the
protest
Within 20 calendar days of the
agency’s receiving notice of the
protest
Protester’s reply to the agency’s
report
Within 10 calendar days of the filing of
the agency report
Within 5 calendar days of the filing of
the agency report
56
4 C.F.R. §21.3(b).
57
4 C.F.R. §21.3(i). In protests decided under the “express option,” this timeframe is reduced to five days. 4 C.F.R.
§21.10(d).
58
4 C.F.R. §21.3(i).
59
31 U.S.C. §3554(a)(1). GAO must also resolve timely supplemental or amended protests within this timeframe, if
possible. 4 C.F.R. §21.9(c).
60
31 U.S.C. §3554(a)(2); 4 C.F.R. §21.10.
61
31 U.S.C. §3554(a)(4).
62
31 U.S.C. §3553(b)(3).
63
4 C.F.R. §21.10(e).
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Event
Normal Time Frames
Express Time Frames
GAO’s decision on the protest
Within 100 calendar days of the
protest’s being filed
Within 65 calendar days of the
protest’s being filed
Source: Congressional Research Service.
Time Frames for Other Optional Events in the GAO Bid-Protest Process
Similarly short time frames apply to other optional events in the GAO bid protest process:
•
protesters must request expedited review under GAO’s “express option” within
five calendar days of filing the protest;64
•
protesters who want GAO to hold hearings on the protest must request a hearing
“as early as possible in the protest process”;65
•
protesters must request any additional documents whose existence or relevance
becomes evident only after the filing of the agency report within two calendar
days of discovering their existence;66 and
•
parties must file written comments on any hearing within five calendar days of
the hearing.67
Automatic Stays of Contract Award or Performance During
GAO Protests
Under CICA, the filing of a bid protest with GAO generally triggers an automatic stay, or
postponement, of contract award or performance. With pre-award bid protests, an agency may not
award the contested contract until the protest has been resolved.68 Similarly, with post-award bid
protests, the agency must withhold authorization of performance under the contract while the
protest is pending.69 If authorization has not been withheld, the agency must “immediately direct
the contractor to cease performance under the contract” until the protest is resolved.70
These bid-protest stays, sometimes called “CICA stays,” are a key aspect of the GAO bid-protest
process,71 which Congress intended to strengthen. 72 Congress did not provide for similar stays
when bid protests are filed with the Court of Federal Claims. Rather, bid protesters filing suit in
64
4 C.F.R. §21.10(c).
Bid Protests at GAO, supra note 30, at 20.
66
4 C.F.R. §21.3(g).
67
4 C.F.R. §21.7(g). If the protester fails to timely file these comments, GAO must, under its own regulations, dismiss
the protest.
68
31 U.S.C. §3553(c)(1).
69
31 U.S.C. §3553(d)(1).
70
Id.
71
See, e.g., PGBA, LLC v. United States, 57 Fed. Cl. 655, 657 (2003) (describing the stays as central to the GAO bid
protest process).
72
See, e.g., Competition in Contracting Act of 1984: H.R. Rep. No. 1157, 98th Cong., 2d Sess. 24-25 (1984) (explaining
that, prior to CICA, many agencies would proceed with the award during the protest, making the GAO’s decision
irrelevant in the face of a contractual fait accompli).
65
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the Court of Federal Claims must meet the court’s customary requirements for temporary
restraining orders or preliminary injunctions in order to effect a delay of the agency’s
procurement activities similar to that generally occurring automatically when a GAO protest is
filed.73 This difference between bid protests at GAO and those at the Court of Federal Claims has
prompted some commentators to worry that the stays triggered by GAO protests encourage
contractors to “game the system.” Such commentators worry that contractors knowingly file
meritless protests with GAO in order to harass their competitors and delay awards to them, or in
the hopes of obtaining short-term contracts from the government during the pendency of the GAO
protest.74 These commentators also worry that the public interest, as embodied in the contract to
be awarded or performed, is neglected during the stay.75
Agency Override of Bid-Protest Stays
Even if it takes the maximum time, a GAO bid protest does not necessarily delay contract award
or performance for up to 100 calendar days. This is in part because CICA also provides grounds
for agency overrides of automatic bid-protest stays.76 Agencies may override bid-protest stays
upon two grounds: (1) “urgent and compelling circumstances which significantly affect interests
of the United States will not permit waiting for the decision of the Comptroller General,”77 or (2)
“performance of the contract is in the best interests of the United States.”78 Only “urgent and
compelling circumstances” may be asserted when GAO bid protests are filed prior to the award of
the contract.79 Either “urgent and compelling circumstances” or the “best interests of the United
States” may be asserted when GAO bid protests are filed after the award of the contract.80
Beyond when the grounds may be asserted, few other differences are apparent between the
circumstances in which agencies can invoke “urgent and compelling circumstances” and those in
which they can invoke the “best interests of the United States,” as Table 2 illustrates.81 Some
73
A temporary restraining order bars a party to litigation from taking certain action(s) while the court decides to issue a
preliminary injunction. In deciding whether to issue a temporary restraining order or a preliminary injunction, the Court
of Federal Claims applies the same four-part test, looking at (1) whether the plaintiff is likely to succeed on the merits
of the case, (2) whether the plaintiff will suffer irreparable harm if the court withholds the requested relief, (3) whether
the balance of hardships to the parties favors the grant of the requested relief, and (4) whether it is in the public interest
to grant the requested relief. See, e.g., Career Training Concepts, Inc. v. United States, 83 Fed. Cl. 215, 218 (2008).
74
Metzger & Lyons, supra note 41, at 1239. A disappointed bidder or offeror who is the incumbent contractor could
obtain another 100 days worth of business from the agency by filing a protest with the GAO because agencies often
continue incumbent contractors during the pendency of GAO protests. See 31 U.S.C. §3553(d)(3)(C); see also Keeton
Corrections, Inc. v. United States, 59 Fed. Cl. 753 (2004) (overruling the Bureau of Prisons’ override of a CICA stay
because the incumbent contractor could continue to provide correction services during the protest). Alternately, a
disappointed bidder or offeror who is not the incumbent contractor could obtain temporary contracts with the agency
during the protest.
75
Id. at 1269.
76
31 U.S.C. §3553(c)(1) & (d)(3). See Ameron, Inc. v. U.S. Army Corp. of Eng’rs, 607 F. Supp. 962, 974 (D.N.J.
1985) (describing the override as a “built-in safety value to prevent undue harm” to the government).
77
31 U.S.C. §3553(c)(2)(A) & (d)(3)(C)(II).
78
31 U.S.C. §3553(d)(3)(C)(II).
79
31 U.S.C. §3553(c)(2).
80
31 U.S.C. §3553(c) & (d).
81
The key determinant of the agency’s success in invoking either grounds for overriding a CICA stay is the agency’s
record of the procurement and its decision making. The agency must be able to demonstrate that its override
determination was not arbitrary, capricious, or an abuse of discretion based upon the evidence in the record before it at
the time the determination was made. See, e.g., Protection Strategies, Inc. v. United States, 76 Fed. Cl. 225, 233-34
(continued...)
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courts and commentators have suggested, however, that an agency’s invocation of “urgent and
compelling circumstances” has more serious overtones and ought to receive more deference than
an agency’s invocation of the “best interests of the United States.”82
Any agency override, upon any basis, requires a written finding that grounds for the override
exist, and the Comptroller General must be notified of this finding. 83
Table 2. Examples of Procurements Involving “Urgent and Compelling
Circumstances” or the “Best Interests of the United States”
Urgent and Compelling Circumstances
Best Interests of the United States
•
Canine services for Army Special Forces in
Afghanistan: agency record showed adverse
consequences, in the form of security breaches
at military installations, without the override; the
override was only for a bridge contract, with the
agency planning a new solicitation within a year;
and the only alleged harm to the protester was
the dissatisfaction of its employees.a
•
Cockpit video recording systems recorders for F/A-18
aircraft: agency record showed that the agency
conducted a proper evaluation in making the initial
award; the override involved a 1 year contract; failure
GAO Bid Protests: An Overview of Time Frames and Procedures
Summary
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.
Protesters disappointed with GAO’s decision can seek reconsideration from GAO. They can also
“appeal” GAO’s decision by filing a bid protest with the Court of Federal Claims.
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GAO Bid Protests: An Overview of Time Frames and Procedures
Contents
Background ...................................................................................................................................... 2
Historical Development of Federal Bid-Protest Mechanisms ................................................... 2
Purposes of Bid-Protest Processes............................................................................................. 3
The GAO Bid-Protest Process ......................................................................................................... 4
What Issues Can Be Protested with GAO? ............................................................................... 4
Who Can File or Be a Party to a GAO Protest? ........................................................................ 6
Procedures for the “Inexpensive” Resolution of Protests .......................................................... 6
Time Frames for the “Expeditious Resolution” of Protests ....................................................... 7
Initial Filings by Interested Parties...................................................................................... 8
GAO Notice to the Agency ................................................................................................. 8
Agency’s Response and Protester’s Reply .......................................................................... 9
Issuance of GAO’s Decision on a Protest ........................................................................... 9
Time Frames for Optional Events in the GAO Bid-Protest Process ................................. 11
Automatic Stays of Contract Award or Performance............................................................... 11
Agency Override of Bid-Protest Stays .............................................................................. 12
GAO and Agency Override Determinations ..................................................................... 14
Judicial Review of Agency Override Determinations ....................................................... 14
Basis and Effects of GAO Decisions ....................................................................................... 15
Denials, Sustainments, and GAO Recommendations ....................................................... 15
Legal Effect of GAO Recommendations .......................................................................... 16
Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act ........................................................................................ 19
Reconsideration and “Appeal” of GAO Decisions.................................................................. 19
Reconsideration of GAO Decisions .................................................................................. 20
“Appeal” of GAO Decisions ............................................................................................. 21
Tables
Table 1. Time Frames of Important Events in the GAO Bid-Protest Process ................................ 10
Table 2. Examples of Procurements Involving “Urgent and Compelling Circumstances”
or the “Best Interests of the United States” ................................................................................ 13
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt
GAO Recommendations Per Fiscal Year .................................................................................... 17
Table 4. Comparative Number of Requests for Reconsideration and Protests Received
and Closed by GAO Per Fiscal Year ........................................................................................... 20
Contacts
Author Contact Information........................................................................................................... 22
Congressional Research Service
GAO Bid Protests: An Overview of Time Frames and Procedures
B
id protests—or written objections to certain actions, described below,1 taken by federal
agencies when acquiring supplies or services for their direct use or benefit—are of
perennial interest to Congress. In some cases, this interest arises from reported increases
in the number of bid protests filed annually and the effects that such protests can have on agency
missions and operations.2 In other cases, congressional interest can be prompted by notable
protests,3 or by agency determinations not to follow any nonbinding recommendations made to
federal agencies by the Government Accountability Office (GAO) in bid protest decisions.4
GAO is not the only forum with authority to hear bid protests involving federal acquisitions.5 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.6 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.
The report is one of two providing Congress with background on the GAO bid-protest process. It
provides an overview of the time frames and procedures in a 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
1
See infra “Background.”
See, e.g., Dietrich Knauth, GAO Sees 1st Decline in Bid Protests Since 2006, LAW360, January 3, 2014 (reporting that
the number of bid protests filed with the Government Accountability Office (GAO) had increased each year since
FY2006, before dropping by 2%, to 2,429 new cases, in FY2013). Because the filing of a protest with GAO may
trigger an automatic stay of contract award or performance, such protests can be said to “disrupt” agency operations.
See, e.g., Memorandum for Secretaries of the Military Departments, Chairman of the Joint Chiefs of Staff, Under
Secretaries of Defense, August 24, 2007, available at http://acquisition.navy.mil/rda/content/download/5263/23838/
file/enhancing%20competition%201-18-2008.pdf (describing bid protests as “extremely detrimental to the warfighter
and taxpayer” and stating that “[t]he Defense Department must take steps in an effort to avoid these protest situations”).
3
See, e.g., Mike Gruss, SpaceX Formally Protests Initial EELV Block Buy Contracts, SPACENEWS, April 26, 2014,
available at http://www.spacenews.com/article/military-space/40343spacex-formally-protests-initial-eelv-block-buycontracts.
4
As discussed below (see “Legal Effect of GAO Recommendations”), the recommendations that GAO makes when
sustaining protests are not legally binding upon federal agencies. Agencies often comply with these recommendations.
However, in certain cases, they do not. For example, in 2011-2013, the Department of Veterans Affairs (VA) declined
to adopt the recommendations made by GAO in a series of 35 bid protests. GAO construed certain amendments made
to the Veterans Benefits Act in 2006 as requiring the VA to make certain purchases from veteran-owned small
businesses. See, e.g., Aldevra, B-405271; B-405524 (October 11, 2011); Kingdomware Techs., B-405727 (December
19, 2011); Crosstown Courier Serv., Inc., B-406262 (March 21, 2012). The VA disagreed, and refused to modify its
procurement practices. GAO noted the VA’s noncompliance in a November 13, 2012, report to Congress. See GAO
Bid Protest Annual Report to the Congress for Fiscal Year 2012, November 13, 2012, available at http://www.gao.gov/
assets/650/649957.pdf. However, shortly thereafter, the U.S. Court of Federal Claims found that the relevant provisions
were ambiguous and the VA’s interpretation was entitled to deference. See Kingdomware Techs., Inc. v. United States,
107 Fed. Cl. 226 (2012). The U.S. Court of Appeals for the Federal Circuit subsequently affirmed the Court of Federal
Claims’ holding. See Kingdomware, 754 F.3d 923 (Fed. Cir. 2014).
5
See 31 U.S.C. §3556 (“This subchapter does not give the Comptroller General [i.e., the head of GAO] exclusive
jurisdiction over protests, and nothing contained in this subchapter shall affect the right of any interested party to file a
protest with the contracting agency or to file an action in the United States Court of Federal Claims.”).
6
The Court of Federal Claims reported the filing of 102 cases in the “Contract/Injunction” category, which includes
“pre-award or post-award bid protest injunction cases” in 2013. See Table G-2A, U.S. Court of Federal Claims—Cases
Filed, Terminated, and Pending for the 12-Month Period Ending September 30, 2013, available at
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2013/appendices/G02ASep13.pdf.
2
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determinations; (6) the basis and effects of GAO decisions; and (7) reconsideration and “appeal”
of GAO decisions. A companion report, CRS Report R40227, GAO Bid Protests: Trends and
Analysis, by Moshe Schwartz, Kate M. Manuel, and Lucy P. Martinez, analyzes recent trends in
bid protests filed with GAO, particularly protests involving the Department of Defense.7
Background
Under federal law, a bid protest is a written objection by an “interested party”—a term whose
meaning is discussed further below (see “Who Can File or Be a Party to a GAO Protest?”)—to
the conduct of a federal agency in acquiring supplies or services for its own direct use and
benefit. This conduct can include
(A) [a] solicitation or other request by a Federal agency for offers for a contract for the
procurement of property or services.
(B) [t]he cancellation of such a solicitation or other request.
(C) [a]n award or proposed award of such a contract.
(D) [a] termination or cancellation of an award of such a contract, if the written objection
contains an allegation that the termination or cancellation is based in whole or in part on
improprieties concerning the award of the contract.
(E) [c]onversion of a function that is being performed by Federal employees to private sector
performance.8
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 supplies and services. However,
Congress currently authorizes bid protests in three separate forums—the procuring agency, GAO,
and the Court of Federal Claims—in recognition of protests’ role in providing redress to
disappointed bidders and offerors and ensuring the integrity of the federal procurement process.9
Historical Development of Federal Bid-Protest Mechanisms
GAO first began hearing bid protests in the early 20th century on the theory that its statutory
authority to settle and adjust “all claims and demands” against the United States encompassed bid
protests.10 The federal courts did not hear protests at that time. Indeed, in its 1940 decision in
Perkins v. Lukens Steel Company, the Supreme Court found that actual or potential bidders who
had been disappointed in their dealings with the federal government lacked standing to challenge
alleged violations of federal procurement laws by government agencies.11 The Court reached this
7
For more on GAO generally, see archived CRS Report RL30349, GAO: Government Accountability Office and
General Accounting Office, by Frederick M. Kaiser.
8
31 U.S.C. §3551(1)(A)-(E).
9
The jurisdiction of the federal district courts over bid protests expired on January 1, 2001. See Administrative Dispute
Resolution Act of 1996, P.L. 104-320, §12(d), 110 Stat. 3875 (October 19, 1996).
10
The Budget and Accounting Act of 1921, P.L. 67-13, §305, 42 Stat. 20, 24 (June 10, 1921).
11
310 U.S. 113, 132 (1940).
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conclusion because it viewed these federal procurement laws as having been enacted strictly for
the government’s benefit, “for the purpose of keeping its own house in order,” and thus not
enforceable against the government by private parties.12 However, several decades later,
beginning with the 1970 decision by the U.S. Court of Appeals for the District of Columbia in
Scanwell Laboratories, Inc. v. John H. Shaffer, the federal courts came to hold that the
Administrative Procedure Act (APA) of 1946 authorized them to hear bid protests.13
Congress later expressly granted bid protest jurisdiction to GAO when it enacted the Competition
in Contracting Act (CICA) of 1984.14 GAO’s long history of handling bid protests, coupled with
several unique aspects of the GAO bid-protest process, most notably the stay of contract award or
performance that may result from the filing of a GAO protest,15 make it a primary locus for
federal bid protests.16
Purposes of Bid-Protest Processes
Although disappointed bidders or offerors would generally have no right to protest if Congress
did not provide for this right with either CICA or the APA, Congress has chosen to authorize
several judicial and other forums to hear bid protests for several reasons.17 First, protest
mechanisms ensure that entities doing business with the government can air their complaints
about government contracting processes and obtain relief. Without such mechanisms, certain
frustrations that citizens have with their government could remain unaddressed. Additionally,
absent such mechanisms, entities might be less willing to do business with the government, which
could diminish competition for government contracts and drive up prices.18 Second, protest
mechanisms enhance the accountability of procurement officials and government agencies by
highlighting and correcting mistakes and misconduct. This accountability helps to ensure the
integrity of the procurement system. If the government’s procurement system were perceived as
corrupt or ineffective, contractors might be less willing to compete for government contracts, and
the price at which the government acquires goods and services could increase. A corrupt or
ineffective procurement system could also waste taxpayers’ money.
These benefits of bid protests are not costless, however; protests can impede the prompt and
efficient acquisition of goods and services needed by the government. Particularly when contract
award or performance is stayed due to the filing of a bid protest, as may happen with GAO
12
Id. at 127.
424 F.2d 859, 865-69 (D.C. Cir. 1970). Although Congress enacted the APA in 1946, it was not until 1970 that the
federal district courts held that the APA gave them jurisdiction to hear bid protests.
14
CICA was enacted as part of the Deficit Reduction Act of 1984, P.L. 98-369, §§2701-2753, 98 Stat. 1175 (1984)
(codified, in part, at 31 U.S.C. §3556). Certain specific issues relating to the award of federal contracts are to be
protested to other agencies, rather than the bid-protest forums. Size certification determinations for small businesses,
for example, are to be protested with the Small Business Administration. See 13 C.F.R. §121.1001.
15
See “Automatic Stays of Contract Award or Performance.”
16
See supra note 6 as to the number of bid protests filed annually with the Court of Federal Claims. It is not known
how many protests are filed annually with the procuring agencies. However, this number may be not insignificant,
since some have expressed the view that protesting with the agency (as opposed to another forum) is a way to preserve
a good relationship with the agency whose actions are being challenged.
17
As previously noted, the procuring agencies and the Court of Federal Claims may also hear bid protests.
18
For more on the benefits to the government of competition in the source-selection process, see generally CRS Report
R40516, Competition in Federal Contracting: A Legal Overview, by Kate M. Manuel.
13
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protests,19 protests can delay agency procurement actions. Protests also require agency officials to
spend time explaining their conduct to disappointed bidders and offerors, and in defending their
conduct before judicial or other forums. Moreover, fear of possible protests may increase the time
and energy that agencies expend in documenting their procurement decisions. Congress has,
however, historically viewed the benefits of protests as outweighing these costs.
The GAO Bid-Protest Process
When it enacted CICA, Congress charged GAO with “provid[ing] for the inexpensive and
expeditious resolution of [bid] protests” to “the maximum extent practicable.”20 GAO has
attempted to meet these goals through the use of time frames and procedures partly prescribed by
statute and partly established by administrative rule making.21 These time frames and procures are
discussed below.
What Issues Can Be Protested with GAO?
Under CICA, disappointed bidders or offerors can protest to GAO about an “alleged violation of
... procurement statute or regulation” by a federal agency in (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.22 The
alleged violation may arise prior to contract award, as when a contractor claims that some aspect
of the solicitation would impermissibly disadvantage it in competing for the contract. Alternately,
the alleged violation may arise with the contract, as when a contractor claims that the government
failed to follow the rules for the competition or otherwise acted improperly in awarding the
contract to the protestor’s competitor(s). Starting in FY2008, under additional jurisdiction granted
to GAO by Congress, GAO may also hear alleged violations pertaining to agencies’ issuance of
task or delivery orders under multiple-award contracts,23 or contracting out under Office of
Management and Budget (OMB) Circular A-76.24 It can also hear protests involving
Transportation Security Administration contracts,25 which had formerly been excluded from GAO
review.
GAO regulations, however, bar GAO from considering certain issues, even when these issues are
implicated in the formation of a government contract. These issues include the following:
•
disputes between a contractor and an agency regarding the terms and
performance of an existing contract;
19
See “Automatic Stays of Contract Award or Performance.”
31 U.S.C. §3554(a)(1).
21
Compare 31 U.S.C. §3554(a)(1) (establishing 100-day time frame for GAO decision) with 4 C.F.R. §21.2(a)(2)
(establishing that post-award protests must generally be filed within 10 days after the basis for protesting was known or
should have been known).
22
31 U.S.C. §3551(1)(A)-(E).
23
Task and delivery orders are awarded under existing contracts. They are not themselves contracts.
24
See Bid Protest Annual Report to the Congress for Fiscal Year 2012, supra note 4.
25
Id.
20
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•
challenges to small business size standards and standard industrial
classifications;26
•
issuance of or refusal to issue certificates of competency under Section 8(b)(7) of
the Small Business Act;27
•
determinations to procure particular supplies or services through the Minority
Small Business and Capital Ownership Development Program (commonly
known as the 8(a) Program);28
•
challenges to agency determinations that a prospective contractor is affirmatively
“responsible” for purposes of the award of a contract;29
•
alleged procurement integrity violations which the protester did not report to the
agency responsible for the alleged violations within 14 days of discovering
them;30
•
procurements by agencies that are not “federal agencies” as defined in Section 3
of the Federal Property and Administrative Services Act (40 U.S.C. §102);31
•
awards or proposed awards of subcontracts, unless the agency awarding the
prime contract has requested in writing that subcontract protests be handled by
GAO as “non-statutory protests”;32
•
the debarment and suspension of government contractors;33
•
protests asserting that the protester’s proposal should not have been included or
kept in the competitive range; and
26
These issues are generally protested with the Small Business Administration (SBA).
The issuance of certificates of competency is part of the process of determining whether certain would-be
government contractors are “responsible.” For more on responsibility determinations, see CRS Report R40633,
Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by Kate
M. Manuel.
28
For more information on the 8(a) Program, see CRS Report R40744, The “8(a) Program” for Small Businesses
Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues, by Kate M.
Manuel.
29
Federal agencies generally cannot award a contract without having determined that the contractor is affirmatively
“responsible” for purposes of the award of the proposed contract. See generally CRS Report R40633, Responsibility
Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures, by Kate M. Manuel.
30
Such violations include the release of source selection information or contractor bid or proposal information by the
agency; undisclosed contacts between employees involved in procurements over $150,000 and bidders or offerors
regarding future employment; or employment by the contractor of former agency officials who were involved in
procurements or administration of contracts valued at $10 million or more within one year of their involvement. See 41
U.S.C. §§2101-2107.
31
This definition encompasses any executive agency or establishment in the legislative or judicial branch other than the
Senate, the House of Representatives, and the Architect of the Capitol (or any activities under the direction of the
Architect of the Capitol). GAO regulations further note that the acquisitions of the U.S. Postal Service, the Federal
Deposit Insurance Corporation, and non-appropriated fund activities (NAFIs) are excluded from GAO’s protest
jurisdiction. 4 C.F.R. §21.5(g).
32
An agency can agree in writing to have other protests—known as “non-statutory protests”—decided by GAO. 4
C.F.R. §21.13(a).
33
For more on debarment and suspension, see CRS Report RL34753, Debarment and Suspension of Government
Contractors: A Legal Overview, by Kate M. Manuel.
27
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•
decisions by “agency tender officials” regarding whether to file protests in
connection with “public-private competitions,” which are conducted to determine
whether functions formerly performed by government employees will be
contracted out or performed in house.34
Who Can File or Be a Party to a GAO Protest?
By statute, a GAO bid protest may be filed by any interested party,35 or any “actual or
prospective bidder or offeror whose direct economic interest would be affected by the award of
the contract or by failure to award the contract.”36 This focus upon direct economic interest in
determining who is an interested party means that a larger number of contractors can generally
bring pre-award protests than can bring post-award protests. Prior to contract award, contractors
who are considering bidding or offering generally qualify as interested parties. In contrast, after
contract award only contractors who bid on the contract or submitted offers may qualify as
interested parties because only they are eligible for the award.37 Moreover, because of the focus
on direct economic interest, GAO may require that contractors both have bid or offered on the
contract and be next in line for its award if the protest is sustained for them to qualify as
interested parties.38 Given their lack of “direct economic interests,” concerned citizens are not
interested parties who may bring GAO bid protests. Subcontractors on federal contracts also
generally lack standing to bring a GAO protest unless the contracting agency has requested that
GAO hear such protests.
In addition to prospective or actual bidders or offerors, other parties to GAO bid protests include
the agency responsible for the alleged violations of federal procurement law and, potentially, one
or more intervenors. Intervenors enter protests to protect their status as awardees or potential
awardees. When the contract has not yet been awarded, GAO regulations permit all bidders or
offerors who “appear to have a substantial prospect of receiving an award if the protest is denied”
to intervene.39 This means that, when the contract has been awarded, only the winning bidder or
offeror may generally intervene.
Procedures for the “Inexpensive” Resolution of Protests
GAO has adopted various regulations and practices to ensure that it resolves protests
“inexpensively,” as required by statute. Among other things, it increases the feasibility of
interested parties filing protests on their own behalf, without legal representation,40 by providing
34
4 C.F.R. §21.5(a)-(k). For more on public-private competitions, see CRS Report RL32833, Sourcing Policy: Statutes
and Statutory Provisions, by Elaine Halchin.
35
31 U.S.C. §3553(a).
36
31 U.S.C. §3551(2)(A). Interested party is defined somewhat differently for purposes of challenges involving publicprivate competitions. See generally 31 U.S.C. §3551(2)(B).
37
GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 6 (9th ed. 2009), available at
http://www.gao.gov/decisions/bidpro/bid/d09417sp.pdf.
38
But see Arora Group, B-288127 (September 14, 2001) (recognizing a bidder whose proposal was ranked fifth as an
interested party because its protest challenged the agency’s application of the evaluation criteria in general and, if
successful, could have placed the contractor in line for the award).
39
4 C.F.R. §21.0(b)(1).
40
Bid Protests at GAO, supra note 37, at 4. However, only attorneys admitted under protective orders are permitted to
see another company’s proprietary information, or the agency’s source-selection-sensitive information, during a GAO
(continued...)
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that “[n]o formal briefs or other technical forms of pleading or motion are required.”41 Rather, for
GAO to consider a protest, a protestor need only
•
identify the contracting agency and the solicitation or contract number;
•
set forth a detailed statement of the legal and factual grounds of protest, including
copies of relevant documents;
•
establish that the protester is an interested party making a timely protest; and
•
state the relief requested (e.g., termination or re-competition of a contract).42
GAO also allows protesters to avoid the costs of traveling to Washington, D.C., where GAO is
located, by providing for the resolution of protests based upon documents filed by the protester
and the agency, as opposed to in-person hearings.43 Hearings are relatively rare in GAO protests.
Between FY2008 and FY2013, 3% to 12% of GAO cases annually entailed hearings.44 Moreover,
when held, hearings are generally less formal than hearings in federal court, with GAO and the
parties determining at a pre-hearing conference what procedures will be followed, as well as what
issues will be considered and which witnesses will testify.45
These factors, as well as the strict time frames for resolving GAO protests, described below, can
make GAO a less expensive venue in which to conduct bid protests than the Court of Federal
Claims. Protesters in the Court of Federal Claims are, in contrast, generally more likely to be
represented by attorneys and have hearings on their protests.46 Their protests can also take longer
to resolve.47 However, some commentators have wondered whether GAO’s comparatively
quicker and less formal procedures make GAO more likely than the Court of Federal Claims to
issue erroneous decisions.48 There have also been questions about whether GAO, with its
comparatively informal procedures, is the best forum for “awards involving complex systems or
services with values rising to the hundreds of millions of dollars or more.”49
Time Frames for the “Expeditious Resolution” of Protests
Federal statutes and regulations also provide for the “expeditious” resolution of protests by
requiring GAO to adhere to strict time frames, including resolving protests within 65 to 100 days
(...continued)
protest. Id. at 5-6.
41
4 C.F.R. §21.1(f).
42
4 C.F.R. §21.1(c)(1)-(8). Protesters may also, if they so wish, request protective orders, specific documents from the
agency, or a hearing before GAO. See 4 C.F.R. §21.1(d)(1)-(3).
43
4 C.F.R. §21.7(a) (allowing parties to a bid protest to request a hearing). See also 4 C.F.R. §21.7(c) (noting that,
although hearings are generally conducted in Washington, D.C., they can sometimes be conducted in other locations,
by telephone, or by other electronic means).
44
GAO Bid Protest Annual Report to Congress for Fiscal Year 2013, January 2, 2014, available at
http://www.gao.gov/assets/660/659993.pdf.
45
4 C.F.R. §21.7(b).
46
Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 WIS. L. REV.
1225, 1232 (2007).
47
Id.
48
Id. at 1241.
49
Id.
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after they are filed. These time frames help ensure that protesters receive prompt resolution of
their claims, and prevent bid protests from delaying the procurement of necessary supplies and
services by federal agencies.50 A protester who files a bid protest with the Court of Federal
Claims, in contrast, potentially could wait over 100 days before the court hears the case51 and
would not have the award or performance of the contract stayed for the duration of the protest, as
generally happens with GAO protests. The specific time frames for the key stages in the GAO
protest process are described below.
Initial Filings by Interested Parties
The time frames within which interested parties must, by regulation, file bid protests with GAO
depend upon the circumstances prompting the protest. Alleged violations that are apparent prior
to bid opening or the time set for receipt of initial proposals must be protested before the bid
opening or by the specified time.52 Other alleged violations must be protested no later than 10
calendar days after they become known, or should have become known, whichever is earlier,
unless the protest challenges “a procurement conducted on the basis of competitive proposals
under which a debriefing is requested and, when requested, is required.”53 Protests filed after
these deadlines are untimely, and GAO generally dismisses them.54 GAO generally considers
untimely protests only when the protester shows good cause for its late filing or when GAO
determines that the protest raises “issues significant to the procurement system.”55 However,
would-be protesters that miss GAO filing deadlines can sometimes still file bid protests with the
Court of Federal Claims, provided they meet the court’s timeliness requirements.56
GAO Notice to the Agency
Once a protest is filed with GAO, GAO is required by statute to notify the federal agency whose
contracting activities are being protested within one working day of receiving the protest.57 This
50
Bid Protests at GAO, supra note 37, at 6.
Metzger & Lyons, supra note 46, at 1232. In many cases, judges on the Court of Federal Claims hold some sort of
hearing on the merits within 60 to 90 days of the protest’s filing. The court does not always render its decision at the
same time as the hearing, however. The decision could come weeks or months later.
52
4 C.F.R. §21.2(a)(1). When the alleged improprieties did not exist in the initial solicitation, but were subsequently
incorporated into it, the protest must be filed prior to the next closing time for receipt of proposals following the
incorporation. Id.
53
4 C.F.R. §21.2(a)(2). A debriefing is a meeting between unsuccessful bidders or offerors and agency officials
wherein agency officials explain why the proposal of the bidder or offeror was not selected. When contractors protest
with GAO after an earlier protest with the contracting agency, that protest must also be filed with GAO within 10
calendar days of the agency’s denying this protest unless the agency had set a shorter time frame for protesters’
“appeal” of agency decisions to GAO. 4 C.F.R. §21.2(a)(3).
54
4 C.F.R. §21.2(b)-(c).
55
4 C.F.R. §21.2(c). In its January 28, 2014, decision in Motorola Solutions, Inc., GAO found that a protest was timely
when the record showed that the agency delayed furnishing the protester with information that was critical to its
argument; the protester diligently pursued this information; and the protester filed within 10 days of being provided the
information that had been improperly withheld. It is unclear whether and how the Motorola “exception” might be
applied in other circumstances.
56
But see Blue & Gold Fleet L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007) (holding that a party that has the
opportunity to object to the terms of a government solicitation containing a patent error and fails to do so before the
close of bidding waives its right to raise the same objection in a bid protest).
57
31 U.S.C. §3553(b)(1). The protester must also submit a copy of the protest to the agency within one working day of
filing the protest with GAO. 4 C.F.R. §21.1(e).
51
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notice is important for two reasons. First, the agency’s receipt of the GAO notice often marks the
beginning of an automatic stay of the award or performance of the contract. This is because,
under CICA, federal agencies which have been notified of GAO bid protests that were filed
within 10 days of contract award (or within 5 days of a debriefing) may not award or authorize
performance of the contract until the protest is decided.58 Second, the agency’s receipt of GAO’s
notice marks the beginning of the 30-calendar-day period within which the agency must generally
respond to the GAO protest.59
Agency’s Response and Protester’s Reply
When responding to a GAO bid protest, the agency is required by statute to file a report with
GAO, generally within 30 calendar days of receiving notice of the protest.60 Under GAO
regulations, this report must include
the contracting officer’s statement of the relevant facts, including a best estimate of the
contract value, a memorandum of law, and a list and a copy of all relevant documents, or
portions of documents, not previously produced, including, as appropriate: the protest; the
bid or proposals submitted by the protester; the bid or proposal of the firm which is being
considered for the award, or whose bid or proposal is being protested; all evaluation
documents; the solicitation, including the specifications; the abstract of bids or offers; and
any other relevant documents.61
The agency can avoid filing this report only when it (or an intervenor) requests and is granted
dismissal of the protest before the report is due.62
After the agency’s report is filed, the protester then has 10 calendar days to submit written
comments on the agency’s report to GAO.63 If the protester fails to submit such comments, GAO
is required, by its own regulations, to dismiss the protest.64
Issuance of GAO’s Decision on a Protest
GAO generally is required to issue its final decision on a bid protest within 100 calendar days of
the protest’s filing.65 This time frame can be shortened to 65 calendar days if GAO determines,
either at the request of a party or upon its own initiative, that the protest should be treated under
58
31 U.S.C. §3553(c)(1) & (d)(3).
31 U.S.C. §3553(b)(2)(A). This 30-day response period can be lengthened when GAO determines, based upon the
agency’s written request, that the circumstances of the protest require a longer period. 31 U.S.C. §3553(b)(2)(B). The
response period can also be shortened to 20 days when GAO determines that the protest is suitable for “express”
resolution and notifies the agency of this determination. 31 U.S.C. §3553(b)(2)(C).
60
31 U.S.C. §3553(b)(2)(A).
61
4 C.F.R. §21.3(d).
62
4 C.F.R. §21.3(b).
63
4 C.F.R. §21.3(i). In protests decided under the “express option,” this time frame is reduced to five days. 4 C.F.R.
§21.10(d).
64
4 C.F.R. §21.3(i) (“The protest shall be dismissed unless the protester files comments within the 10-day period,
except where GAO has granted an extension or has established a shorter period in accordance with §21.10(e).”).
65
31 U.S.C. §3554(a)(1). GAO regulations also call for GAO to resolve timely supplemental or amended protests
within this time frame, if possible. 4 C.F.R. §21.9(c).
59
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the “express option.”66 GAO can also dismiss a protest that is frivolous—or that does not state, on
its face, a valid basis for protest—at any time,67 even before the agency files its report with
GAO.68 GAO can similarly issue a summary decision on a protest at any time.69
The importance that Congress attaches to the expeditious resolution of protests by GAO is
indicated by the fact that GAO is required by statute to report to Congress on any instance in
which GAO fails to issue its final decision on a protest within 100 calendar days of the protest’s
filing.70 Prior to FY2014, GAO apparently never had any such instances, and thus never had to
make such a report to Congress. However, the 16-day-long government shutdown at the
beginning of FY2014 prompted GAO to “extend the bid protest deadlines one day for each day
that GAO was shutdown.”71 280 protests were reportedly affected by this extension.72 Of these,
GAO reports that 241 were resolved within 100 days without any extension, and the remaining 39
were resolved within 100 “calendar days for the period that the government was funded” (i.e.,
100 days plus the 16-day extension).73
Table 1. Time Frames of Important Events in the GAO Bid-Protest Process
Event
Normal Time Frames
Express Time Frames
Filing of protest with GAO
Prior to the bid opening or the time
set for receipt of initial proposals, in
the case of pre-award protests; no
more than 10 calendar days after the
protested conduct, in the case of
post-award protests
Prior to the bid opening or the time
set for receipt of initial proposals, in
the case of pre-award protests; no
more than 10 calendar days after the
protested conduct, in the case of
post-award protests
Notice of the protest sent from
GAO to the agency
Within 1 working day of the protest’s
being filed
Within 1 working day of the protest’s
being filed
Agency’s report on the protested
procurement sent to GAO
Within 30 calendar days of the
agency’s receiving notice of the
protest
Within 20 calendar days of the
agency’s receiving notice of the
protest
Protester’s reply to the agency’s
report
Within 10 calendar days of the filing of
the agency report
Within 5 calendar days of the filing of
the agency report
GAO’s decision on the protest
Within 100 calendar days of the
protest’s being filed
Within 65 calendar days of the
protest’s being filed
Source: Congressional Research Service, based on various sources cited supra “Time Frames for the
“Expeditious Resolution” of Protests.”
66
31 U.S.C. §3554(a)(2); 4 C.F.R. §21.10(b).
31 U.S.C. §3554(a)(4).
68
31 U.S.C. §3553(b)(3).
69
4 C.F.R. §21.10(e).
70
31 U.S.C. §3554(e)(1).
71
GAO Bid Protest Annual Report to the Congress for Fiscal Year 2014, November 18, 2014, at 2, available at
http://www.gao.gov/assets/670/667024.pdf.
72
Id.
73
Id.
67
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Time Frames for Optional Events in the GAO Bid-Protest Process
Similarly short time frames apply to optional steps in the GAO bid-protest process. Here, GAO
regulations require protesters to
•
request expedited review under GAO’s “express option” within five calendar
days of filing the protest;74
•
request a hearing “as early as possible in the protest process”;75
•
request any additional documents whose existence or relevance becomes evident
only after the filing of the agency report within two calendar days of discovering
their existence;76 and
•
file written comments on any hearing within five calendar days of the hearing.77
Automatic Stays of Contract Award or Performance
Under CICA, the filing of a bid protest with GAO may trigger an automatic stay (or
postponement) of contract award or performance. With pre-award bid protests, an agency may not
award the contested contract until the protest has been resolved.78 Similarly, with post-award bid
protests, the agency must withhold authorization of performance under the contract while the
protest is pending.79 If authorization has not been withheld, the agency must “immediately direct
the contractor to cease performance under the contract” until the protest is resolved.80
These bid-protest stays—commonly known as “CICA stays”—are a key aspect of the GAO bidprotest process,81 which Congress mandated in order to strengthen GAO’s protest function.82
Congress did not provide for similar stays when bid protests are filed with the Court of Federal
Claims. Rather, protesters filing suit in the Court of Federal Claims must meet the court’s usual
requirements for temporary restraining orders or preliminary injunctions in order to affect a delay
of the agency’s procurement activities similar to that which generally occurs automatically when
a GAO protest is filed.83 This difference between bid protests at GAO and those at the Court of
74
4 C.F.R. §21.10(c).
Bid Protests at GAO, supra note 37, at 24.
76
4 C.F.R. §21.3(g).
77
4 C.F.R. §21.7(g). If the protester fails to timely file these comments, GAO must, under its own regulations, dismiss
the protest.
78
31 U.S.C. §3553(c)(1).
79
31 U.S.C. §3553(d)(3)(A).
80
31 U.S.C. §3553(d)(3)(A)(ii).
81
See, e.g., PGBA, LLC v. United States, 57 Fed. Cl. 655, 657 (2003) (describing the stays as “central” to the GAO
bid-protest process).
82
See, e.g., Competition in Contracting Act of 1984: H.R. Rep. No. 1157, 98th Cong., 2d Sess. 24-25 (1984) (explaining
that, prior to the enactment of CICA, many agencies would proceed with contract award during the protest, making
GAO’s decision irrelevant in the face of a contractual fait accompli).
83
A temporary restraining order bars a party to litigation from taking certain action(s) while the court decides whether
to issue a preliminary injunction. In deciding whether to issue a temporary restraining order or a preliminary injunction,
the Court of Federal Claims generally applies the same four-part test, looking at (1) whether the plaintiff is likely to
succeed on the merits of the case, (2) whether the plaintiff will suffer irreparable harm if the court withholds the
requested relief, (3) whether the balance of hardships to the parties favors the grant of the requested relief, and (4)
(continued...)
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Federal Claims has prompted some commentators to worry that the stays triggered by GAO
protests encourage contractors to “game the system.” Such commentators worry that contractors
knowingly file meritless protests with GAO in order to harass their competitors and delay awards
to them, or in the hopes of obtaining short-term contracts from the government during the
pendency of the GAO protest.84 These commentators also worry that the public interest, as
embodied in the contract to be awarded or performed, is neglected during the stay.85 However,
agencies’ authority to override CICA stays, discussed below, may diminish the significance of
such concerns. An override could permit an agency to proceed with contract award or
performance while a protest is pending.86
Agency Override of Bid-Protest Stays
CICA expressly authorizes agencies to override the automatic stay of contract award or
performance that may be triggered by the filing of a GAO protest when
•
“urgent and compelling circumstances which significantly affect interests of the
United States will not permit waiting for the decision of the Comptroller
General”;87 or
•
“performance of the contract is in the best interests of the United States.”88
Only “urgent and compelling circumstances” may be asserted when GAO bid protests are filed
prior to the award of the contract.89 However, either “urgent and compelling circumstances” or
the “best interests of the United States” may be asserted when GAO bid protests are filed after the
award of the contract.90
Beyond when the grounds may be asserted, few other differences are apparent between the
circumstances in which agencies can invoke “urgent and compelling circumstances” and those in
which they can invoke the “best interests of the United States,” as Table 2 illustrates.91 Some
(...continued)
whether it is in the public interest to grant the requested relief. See, e.g., Career Training Concepts, Inc. v. United
States, 83 Fed. Cl. 215, 218 (2008).
84
Metzger & Lyons, supra note 46, at 1239. A disappointed bidder or offeror who is the incumbent contractor could
obtain another 100 days’ worth of business from the agency by filing a protest with GAO because agencies often
continue incumbent contractors during the pendency of GAO protests. See 31 U.S.C. §3553(d)(3)(C); see also Keeton
Corrections, Inc. v. United States, 59 Fed. Cl. 753 (2004) (overruling the Bureau of Prisons’ override of a CICA stay
because the incumbent contractor could continue to provide correction services during the protest). Alternately, a
disappointed bidder or offeror who is not the incumbent contractor could obtain temporary contracts with the agency
during the protest.
85
Metzger & Lyons, supra note 46, at 1269.
86
See, e.g., Ameron, Inc. v. U.S. Army Corp. of Eng’rs, 607 F. Supp. 962, 974 (D.N.J. 1985) (describing the override
as a “built-in safety value to prevent undue harm” to the government).
87
31 U.S.C. §3553(c)(2)(A) & (d)(3)(C)(i)(II).
88
31 U.S.C. §3553(d)(3)(C)(i)(I).
89
31 U.S.C. §3553(c)(2).
90
31 U.S.C. §3553(c) & (d).
91
The key determinant of the agency’s success in invoking either grounds for overriding a CICA stay is the agency’s
record of the procurement and its decision making. The agency must be able to demonstrate that its override
determination was not arbitrary, capricious, or an abuse of discretion based upon the evidence in the record before it at
the time the determination was made. See, e.g., Protection Strategies, Inc. v. United States, 76 Fed. Cl. 225, 233-34
(continued...)
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courts and commentators have suggested, however, that an agency’s invocation of “urgent and
compelling circumstances” has more serious overtones and ought to receive more deference than
an agency’s invocation of the “best interests of the United States.”92
Any agency override, upon any basis, requires a written finding that grounds for the override
exist, and the agency is required by statute to notify GAO of this finding.93
Table 2. Examples of Procurements Involving “Urgent and Compelling
Circumstances” or the “Best Interests of the United States”
Urgent and Compelling Circumstances
Best Interests of the United States
•
Canine services for Army Special Forces in
Afghanistan: agency record showed adverse
consequences, in the form of security breaches
at military installations, without the override; the
override was only for a bridge contract, with the
agency planning a new solicitation within a year;
and the only alleged harm to the protester was
the dissatisfaction of its employees.a
•
Cockpit video recording systems recorders for F/A-18
aircraft: agency record showed that the agency
conducted a proper evaluation in making the initial
award; the override involved a one-year contract;
failure to override would interfere with the aircraft’s
deployment to Bosnia and troop training; and the
public interest required that the troops be well
equipped.d
•
Maintenance & refuse services at Navy housing
facility: agency record showed that services
under the contract were essential to the health,
safety, and morale of military personnel; the
protester’s allegations of harm were speculative;
and the public interest would be harmed if the
protester, which was not a small business, got an
award set aside for a small business.b
•
Training services for a “top gun” school: protester
alleged only speculative harm, claiming it would never
“get on base again” if it lost the protest; the agency
record showed that the contract was key to the
success of a weapons school whose operations had
already been interrupted; and protecting national
security by ensuring adequate training was in the public
interest.e
•
Maintenance & support services for Border
Patrol academy: agency record showed that the
protester, who was the incumbent contractor,
had performed inadequately and could not
continue to perform during the protest; and time
pressures required the award of a new contract.c
•
Spectrum management engineering services: agency
record showed that performance under the protested
contract was time-critical and that the winning offeror
was only source with personnel qualified to perform
the work.f
Source: Congressional Research Service.
Notes: All examples are taken from federal court cases in which the courts found that the agency had acted
reasonably in overriding a CICA stay upon the grounds of “urgent and compelling circumstances” or the “best
interests of the United States.”
a.
EOD Tech., Inc. v. United States, 82 Fed. Cl. 12 (2008).
b.
Superior ServicesServs., Inc. v. Dalton, 851 F. Supp. 381 (S.D. Cal. 1994).
c.
Ramcor Servs. Group, Inc. v. United States, 185 F.3d 1286 (Fed. Cir. 1999).
(...continued)
(2007) (discussing reviewing courts’ focus upon agency records as they existed at the time of the override
determination); U.S. Army Acquisition Corps, CICA Automatic Stay Override Guide 2 (2004), available at
http://www.aca.army.mil/docs/Community/aca_ovrid_gd.doc (suggesting that agency contracting officers should
prepare their files so as to have strong records for judicial scrutiny).
82 (copy on file with the
authors).
92
Robert M. Hansen, CICA Without Enforcement: How Procurement Officials and Federal Court Decisions Are
Undercutting Enforcement Provisions of the Competition in Contracting Act, 6 Geo. Mason L. RevGEO. MASON L. REV. 131, 155 (1997)
(“If an action is in the ‘best interest of the United States,’ it certainly must be ‘urgent and compelling,’ and if it is
‘urgent and compelling,’ it very likely will be in the country’s ‘best interest.’”).
8393
31 U.S.C. §3553(c)(1) & (d)(3).
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d.
Teac Am., Inc. v. U.S. Dep’t of the Navy, 876 F. SupplSupp. 289 (D.D.C. 1995).
e.
SDS Int’l Inc. v. United States, 55 Fed. Cl. 363 (2003).
f.
Alion Science & Tech. Corp. v. United States, 69 Fed. Cl. 14 (2005).
GAO and Agency Override Determinations
Although agencies are required by law to inform GAO of their override determinations, GAO
does not review the agency’s override determination and cannot reverse it. GAO lacks authority
and jurisdiction to keep the agency from proceeding to award or authorize performance of the
contract under the override. All that GAO can do is report on agency overrides to Congress, as it
routinely did did
in its annual reports until FY2002.84 Potential congressional awareness of agency override
determinations may deter agency overrides.94
Judicial Review of Agency Override Determinations
Outside of the agency itself, the only entity that can reverse an agency override determination and
reinstate the delay of contract award or performance that a GAO bid protest triggers is a federal
court—currently the Court of Federal Claims85Claims95—acting on the petition of the protester. To achieve
such an outcome, the court would have to grant the protester’s motion to restrain or enjoin the
government from awarding the contract or authorizing performance under it.8696
Although courts once exempted agency determinations as to the “best interests of the United
States” from judicial review87review97 and gave substantial deference to agency determinations as to “best
interests” and “urgent and compelling circumstances,”8898 the Court of Federal Claims has recently
84
Compare GAO,enjoined agency overrides after subjecting the agency’s override determination to “searching
94
Compare GAO Bid Protest Annual Report to the Congress for Fiscal Year 2003, Jan.January 30, 2004, available at
http://www.gao.gov/special.pubs/bidpro03.pdf (not reporting on agency override determinations) with GAO, GAO Bid
Protest Bid Protest
Annual Report to the Congress for Fiscal Year 2002, Jan.January 29, 2003, available at http://www.gao.gov/
special.pubs/
bidpro02.pdf (reporting on agency override determinations).
8595
Since Ramcor Services Group, Inc. v. United States, 183 F.3d 1286 (Fed. Cir. 1999), all such suits have been brought
in the Court of Federal Claims.
8696
Because the case comes to the court on a motion for a temporary restraining order or preliminary injunction, the
court applies its customary test, examining (1) whether the protester is likely to succeed on the merits, (2) whether the
protester will suffer irreparable harm if the court denies the requested relief, (3) whether the balance of hardships favors
the grant of the requested relief, and (4) whether the requested relief would further the public interest. See, e.g., Career
Training Concepts, 83 Fed. Cl. at 218. The court’s analysis of whether the protester is likely to succeed on the merits,
in turn, focuses upon whether the agency’s override determination was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law” in violation of the Administrative Procedure Act (APA). See 5 U.S.C.
§706(2)(A) (scope of review under the APA); Superior Helicopter LLC v. United States, 78 Fed. Cl. 181, 186-87
(2007) (application of APA to agency overrides). In this analysis, the court focuses upon whether significant adverse
consequences would have resulted if the agency had not overridden the stay; whether the agency had reasonable
alternatives to the override; how the benefits of the override compare to its potential costs, including the possibility that
the protester might prevail in the GAO bid protest; and the impact of the override on competition and the integrity of
the procurement system. See, e.g., Reilly’s Wholesale Produce, Inc. v. United States, 73 Fed. Cl. 705, 711 (2006).
8797
Topgallant Group, Inc. v. United States, 704 F. Supp. 265, 266 (D.D.C. 1988) (holding that determination of what is
in the “best interests of the United States” is committed to agency discretion and unreviewable). Topgallant was
followed by SDS International, Inc. v. United States, 55 Fed. Cl. 363 (2003); Dairy Maid Dairy, Inc. v. United States,
837 F. Supp. 1370 (E.D. Va. 1993); and other federal court decisions. The Court of Federal Claims rejected the logic of
Topgallant shortly after its SDS International decision in PGBA, Inc.
88LLC v. United States, 57 Fed. Cl. 655, 657 (2003).
98
See, e.g., Mark Dunning Indus., Inc. v. Perry, 890 F. Supp. 1504, 1511 (M.D. Ala. 1995) (stating that courts are to
apply a particularly deferential standard of review in determining agency rationality in override determinations); Stay,
Inc. v. Cheney, 940 F.2d 1457, 1463 (11th Cir. 1991) (same).
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enjoined agency overrides after subjecting the agency’s override determination to “searching
inquiry.”89inquiry.”99 Override determinations based on considerations of national security or national
defense sometimes receive greater deference from the Court of Federal Claims, 90court,100 but not even
these considerations
guarantee victory for agencies. 91federal agencies.101
Basis and Effects of GAO Decisions
GAO is charged by statute with “deciding” all bid protests filed in accordance with GAO
regulations.92102 When deciding a protest, GAO isdoes not to substitute its judgment for the agency’s, or
conduct de novo review of agency procurement activities and processes.93103 Rather, GAO is to
consider
considers only whether the agency complied with procurement statutes or regulations, as well as
had reasonable bases and adequate documentation, in its decision making.94104
Denials, Sustainments, and GAO Recommendations
When GAO finds no illegalities or other problems, it is to deny the protest, leaving the agency
violation of federal procurement statutes or regulations, it denies the protest,
leaving the agency free to award the contract, or authorize performance under it, barring a court
order to the contrary.
When GAO finds illegalities or other problemsa violation, however, it would sustainsustains the protest and may
recommend that the agency (1)
•
refrain from exercising its options under the contract, (2) recompete the contract, (3) issue a new solicitation, (4) terminate the contract, (5) award the
;
•
re-compete the contract;
•
issue a new solicitation;
•
terminate the contract;
•
award the contract consistent with the requirements of statutes or regulations, or (6) implement any other
recommendation that the “Comptroller General determines to be necessary in order to promote
compliance with procurement statutes and regulations.”95 In deciding which of these options to
recommend, GAO considers all the circumstances surrounding the procurement or proposed
procurement.96 This includes the seriousness of the agency’s procurement deficiency, the degree
89
; or
99
The standard of “searching inquiry” is that from Citizens to Preserve Overton Park v. Volpe, 41 U.S. 402, 416
(1971). Commentators have noted that the Court of Federal Claims has been less deferential to agency override
determinations since 2006, when it issued its decision in Reilly’s Wholesale Produce. See, e.g., Kevin J. Wilkinson &
Dennis C. Ehlers, Ensuring CICA Stay Overrides Are Reasonable, Supportable, and Less Vulnerable to Attack:
Practical Recommendations in Light of Recent COFC Cases, 60 A.F. L. RevREV. 91, 93 (2006) (describing 2006 as a
“watershed” year).
90100
See, e.g., SDS Int’l, 55 Fed. Cl. at 366 (stating that courts must give “due regard” to the interests of national defense
and national security when deciding bid protests); Maden Tech Consulting Inc. v. United States, 74 Fed. Cl. 786, 790
(2006) (“Where legitimate ‘interests of national defense and national security’ [are] asserted and established to the
court’s satisfaction, the court will not ‘reach the merits of whether [CICA] is violated.’”).
91101
Compare Gentex Corp. v. United States, 58 Fed. Cl. 634, 655-56 (2003) (stating that assertions of national security
and national defense get more deference but the court still examines their merits) and Geo-Seis Helicopters, Inc. v.
United States, 77 Fed. Cl. 633, 650 (2007) (focusing upon national security concerns in tailoring injunctive relief, not
in deciding on the merits of the case) with Hughes Missile Sys. Co. v. Dep’t of Air Force, No. 96-937, slip. op. at 77
(E.D. Va. 1996), quoted in Hansen, supra note 8292, at 154, (upholding an agency’s override without reaching the merits
of the plaintiff’s argument even though the agency conceded that it prepared its findings justifying the override
determination after the fact).
92102
31 U.S.C. §3552(a).
93103
See, e.g., Baker Support Sys., B-257054.2 (Jan.January 20, 1995).
94104
See, e.g., 31 U.S.C. §3552(a) (agency compliance with statutes and regulations); McWane & Co., B-280374 (Mar. 1,
March
1, 1996) (agency evaluation’sevaluations having a reasonable basis and being consistent with evaluation criteria in the request for
proposals); Moheat Env. Servs., B-270538 (Nov.November 20, 1996) (agency evaluation’sevaluations having a reasonable basis and
adequate documentation even if otherwise inconsistent with the evaluation criteria).
95
31 U.S.C. §3554(b)(1)(A)-(G).
96
4 C.F.R. §21.8(b).
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of prejudice to the other parties and the integrity of the procurement system, the extent of
performance, the cost to the government, the urgency of the procurement, and the potential
impact of any GAO recommendation upon the agency’s mission.97 Because GAO is a legislative
branch agency, it could not constitutionally compel executive branch agencies to implement its
recommendations because of the separation of powers doctrine. 98•
implement any other recommendation that the “Comptroller General determines
to be necessary in order to promote compliance with procurement statutes and
regulations.”105
In deciding which of these options to recommend, GAO is required, by regulation, to consider all
the circumstances surrounding the procurement or proposed procurement.106 This includes (1) the
seriousness of the agency’s procurement deficiency, (2) the degree of prejudice to the other
parties and the integrity of the procurement system, (3) the extent of performance, (4) the cost to
the government, (5) the urgency of the procurement, and (6) the potential impact of any GAO
recommendation upon the agency’s mission.107
Along with its recommendations sustaining the protest, GAO can also recommend that the agency
conducting the procurement pay to the protester the costs of filing and pursuing the protest,
including reasonable attorneys’ fees; the fees for consultants and expert witnesses; and the
expenses of preparing the bid or protest.99108 When GAO recommends that an agency pay costs, the
agency mustis required by statute to either pay the costs promptly, or report to the Comptroller GeneralGAO its reasons for not
paying.100109 The agency must also is also required to attempt to reach an agreement with the protester on the
costs to
be paid.101110 If agreement cannot be reached, the protester can request that GAO
recommend to the
agency an amount to be paid.102111
Legal Effect of GAO Recommendations
Even when GAO finds that the agency engaged in illegal or improper conductviolated federal procurement law and sustains the
protest, however, the agency is not legally required to implement the recommendations in GAO’s
decision. GAO recommendations lack the force of law and are not binding upon the parties. In
fact, a decision by GAO on a protest does not preclude a protester from later filing suit on the
same matter in the Court of Federal Claims.103
Agencies typically fully adopt GAO recommendations, nonetheless, as Table 3 illustrates.
According to GAO’s annual reports to Congress, in only seven cases between FY2001 and
FY2010 did an agency decline to fully adopt GAO’s recommendations. However, GAO reports
are based on statutory requirements focused upon a procuring agency’s implementation of
specific recommendations regarding a particular solicitation, proposed award, or award within a
relatively short time frame (65 days):
If the Federal agency fails to implement fully the recommendations of the Comptroller
General under this subsection with respect to a solicitation for a contract or an award or
proposed award of a contract within 60 days after receiving the recommendations, the head
97
Id.
See Ameron, Inc. v. United States Army Corps of Eng’gs, 809 F.2d 979, 986 (3d Cir. 1986).
99
however, the agency is not legally required to implement the recommendations in GAO’s
decision. This is because GAO is a legislative branch agency and cannot constitutionally compel
executive branch agencies to implement its recommendations because of the separation of powers
doctrine.112
105
31 U.S.C. §3554(b)(1)(A)-(H). In determining what to recommend when it finds a violation of federal procurement
statutes or regulations, GAO is required by regulation to consider “all circumstances surrounding the procurement or
proposed procurement including the seriousness of the procurement deficiency, the degree of prejudice to other parties
or to the integrity of the competitive procurement system, the good faith of the parties, the extent of performance, the
cost to the government, the urgency of the procurement, and the impact of the recommendation(s) on the agency’s
mission.” 4 C.F.R. §21.8(b). Some commentators have asserted that this provision can help lessen the costs and delays
that GAO bid protests can impose upon the procurement process. See Robert S. Metzger & Oliya S. Zamaray, GAO’s
Neglected §21.8(b): How It Can Be Used to Address Concerns That Bid Protests Are Too Costly and Disruptive, 102
FED. CONT. REP. 219 (August 12, 2014).
106
4 C.F.R. §21.8(b).
107
Id.
108
31 U.S.C. §3554(c)(1)(A)-(B). The Court of Federal Claims, in contrast, has ruled that it does not have jurisdiction
over bid protest costs. S.K.J. & Assocs. v. United States, 67 Fed. Cl. 218 (2005).
100109
31 U.S.C. §3554(c)(3)(A)-(B). WhereWhen GAO recommends fees for consultants, expert witnesses, or attorneys, no
party other than a small business concern within the meaning of Section 3(a) of the Small Business Act may be paid
costs for consultant- or expert-witness-fees that exceed the highest rate of compensation for expert witnesses paid by
the federal government, or costs for attorneys’ fees that exceed $150 per hour, unless the agency determines that an
increase in the cost of living or a special factor justifies a higher fee. 31 U.S.C. §3554(c)(2)(A)-(B).
101110
31 U.S.C. §3554(c)(4).
102
Id.
103
Metzger & Lyons, supra note 41, at 1232, 1248. GAO, in contrast, will not hear protests that have been the subject
of litigation or have been decided on the merits by a court of competent jurisdiction. 4 C.F.R. §21.11(b).
98
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of the procuring activity responsible for that contract shall report such failure to the
Comptroller General not later than 5 days after the end of such 60-day period.104
The reports thus do not necessarily capture decisions whose underlying logic the executive
branch disagrees with at a later date. GAO issued such a decision, which is not addressed in either
its FY2008 or FY2009 reports to Congress, on September 19, 2008, in International Program
Group, Inc.105 This decision was the first of several in which GAO construed the Small Business
111
Id.
112
See Ameron, Inc. v. United States Army Corps of Eng’rs, 809 F.2d 979, 986 (3d Cir. 1986).
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Agencies typically fully adopt GAO recommendations, nonetheless, as Table 3 illustrates.
According to GAO’s annual reports to Congress, in only seven cases between FY2001 and
FY2011 did an agency decline to fully adopt GAO’s recommendations.113 The number of cases is
comparatively larger in FY2012 and FY2013. However, all but one of the cases reported in these
two years involved the same issue of statutory interpretation, and the U.S. Court of Appeals for
the Federal Circuit later affirmed a Court of Federal Claims’ decision rejecting the statutory
interpretation that GAO had relied upon in issuing these decisions.114
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt
GAO Recommendations Per Fiscal Year
(2001-2014)
Fiscal Year
Number of Cases
2001
0
2002
1a
2003
2b
2004
0
2005
0
2006
0
2007
0
2008
0
2009
1c
2010
3d
2011
0
2012
18e
2013
17f
113
It is important to note, however, that GAO reports are based on statutory requirements focused upon a procuring
agency’s implementation of specific recommendations regarding a particular solicitation, proposed award, or award
within a relatively short time frame (65 days). 31 U.S.C. §3554(b)(3). Thus, the reports do not necessarily capture
decisions whose underlying logic the executive branch repudiates at a later date. GAO issued such a decision, which is
not addressed in either its FY2008 or FY2009 reports to Congress, on September 19, 2008, in International Program
Group, Inc. B-400278; B-400308 (September 19, 2008). This decision was the first of several in which GAO construed
the Small Business Act to require that set-asides for Historically Underutilized Business Zone (HUBZone) small
businesses take “precedence” over set-asides for other categories of small businesses. 106 It was
See Mission Critical Solutions,
B-410057 (May 4, 2009). It was only after the second such decision that the Obama Administration indicated that it
would not
accord HUBZone set-asides precedence over set-asides for service-disabled veteran-owned and
8(a) small businesses because it disagreed with GAO’s construction of the Small Business Act.107
Congress later enacted legislation that amended the statutory text that formed the basis for GAO’s
recommendations.108
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt
GAO Recommendations Per Fiscal Year
(2001-2010)
Fiscal Year
Number of Cases
2001
0
2002
1a
2003
2b
2004
0
2005
0
2006
0
2007
0
2008
0
2009
1c
104
31 U.S.C. §3554(b)(3).
B-400278; B-400308, 2008 U.S. Comp. Gen. LEXIS 193 (September 19, 2008).
106
Mission Critical Solutions, B-410057, 2009 U.S. Comp. Gen. LEXIS 86 (May 4, 2009). For more on International
Program Group, Mission Critical Solutions, and the executive branch’s response, see CRS Report R40591, Set-Asides
for Small Businesses: Recent Developments in the Law Regarding Precedence Among the Set-Aside Programs and SetAsides Under Indefinite-Delivery/Indefinite-Quantity Contracts, by Kate M. Manuel.
107
businesses because it disagreed with GAO’s construction of the Small Business Act. See Executive Office of the
President, Office of Mgmt. & Budget, Recent Government Accountability Office
Decisions Concerning Small Business
Programs, July 10, 2009, available at http://www.whitehouse.gov/omb/assets/
memoranda_fy2009/m09-23.pdf (directing agencies not to give HUBZone set-asides precedence over set-asides for
service-disabled veteran-owned and 8(a) small businesses until OMB instructs otherwise); Office memoranda_fy2009/m09-23.pdf; Office
of Legal Counsel,
Department of Justice, Permissibility of Small Business Administration Regulations Implementing
the Historically
Underutilized Business Zone, 8(a) Business Development, and Service-Disabled Veteran-Owned Small Business
Business Concern Programs, Aug.August 21, 2009, available at http://www.usdoj.gov/olc/2009/sba-hubzone-opinion082109.pdf
(disagreeing with GAO and finding that Small Business Administration regulations, which provide for parity, not
precedence, among the set-aside programs, constitute a reasonable interpretation of the Small Business Act entitled to
deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.).
108
hubzoneopinion082109.pdf. Congress later enacted legislation that amended the statutory text that formed the basis for GAO’s
recommendations. See Small Business Jobs Act of 2010, P.L. 111-240, §1347, 124 Stat. 2546-47 (Sept. 27, 2010).
105September 27,
2010).
114
Kingdomware Techs., Inc. v. United States, 754 F.3d 923 (Fed. Cir. 2014), aff'g 107 Fed. Cl. 226 (November 27,
2012).
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Fiscal Year
Number of Cases
2010
3d2014
1g
Source: Congressional Research Service using data from GAO.
a.
Rockwell Elec. Commerce Corp., B-286201.6, B-286201.8 (August.8 (Aug. 30, 2001 and Mar.March 5, 2002).
b.
Consolidated Eng’g Servs., Inc., B-291345, B-291345.2 (December.2 (Dec. 23, 2002); Symplicity Corp., B-291902 (Apr.
(April 29, 2003).
c.
Mission Critical Solutions, B-401057 (May 4, 2009).
d.
Rice Servs., Inc., B-402966.2 (Sept.September 16, 2010); Rice Servs., Inc., B-403746 (Sept.September 16, 2010); DGR
Assocs., Inc.,
B-402494 (May 14, 2010).
The high degree of agency deference to GAO recommendations arguably reflects the scrutiny that
Congress gives to agency decisions not to fully implement GAO recommendations. By statute,
agencies have 60 calendar days within which to fully adopt GAO recommendations. Any agency
that does not do so must promptly notify GAO, which then promptly notifies four congressional
committees. 109 Once aware that an agency is not fully adopting GAO’s recommendations,
Congress can exercise oversight or take legislative action compelling agency compliance, if it so
chooses. 110
Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act
Compliance with GAO precedent or recommendations does not necessarily immunize the agency
from all future legal challenges to or liability for its actions. Since 2007, the Court of Federal
Claims has issued several decisions which suggest that an agency could be found to have acted
arbitrarily, capriciously, and in abuse of discretion, in violation of the Administrative Procedure
Act (APA), by following GAO precedents or adopting GAO recommendations. First, in Geo-Seis
Helicopters, Inc. v. United States, the court found that the Military Sealift Command violated the
APA by relying on GAO precedent allowing agencies to issue amendments that extend the bid
closing date after the date has passed.111 According to the court, this precedent was contrary to the
“late is late” rule of Federal Acquisition Regulation Section 52.215-1(c)(3)(ii)(A),112 and the
contracting officer’s reliance on this precedent “render[ed] arbitrary her decision to accept [the
109
31 U.S.C. §3554(b)(3 B-402494 (May 14, 2010).
e.
The U.S. Court of Appeals for the Federal Circuit later affirmed a Court of Federal Claims decision
rejecting the statutory interpretation that GAO had relied upon in issuing these decisions.
f.
Sixteen of the 17 decisions noted in FY2013 involved the same question of statutory interpretation that was
at issue in the cases in FY2012. The other case was Assisted Housing Services Corporation; North Tampa
Housing Development Corporation; The Jefferson County Assisted Housing Corporation; National Housing
Compliance; Southwest Housing Compliance Corporation; CMS Contract Management Services and the
Housing Authority of the City of Bremerton; Massachusetts Housing Finance Agency, B-406738,B406738.2,B-406738.3,B-406738.4,B-406738.5,B-406738.6,B-406738.7,B-406738.8 (August 15, 2012). The
agency here proceeded with the challenged actions, which were then protested to the Court of Federal
Claims. The Court of Federal Claims found for the agency. However, this decision was overturned on
appeal by the U.S. Court of Appeals for the Federal Circuit, which relied upon the same reasoning that
GAO had adopted. See CMS Contract Mgmt. Servs. Corp. v. United States, 745 F.3d 1379 (Fed. Cir. 2014),
rev’g 110 Fed. Cl. 537 (2013).
g.
Asiel Enters., Inc., B-408315.2 (Sept. 5, 2013).
The high degree of agency deference to GAO recommendations arguably reflects the scrutiny that
Congress gives to agency decisions not to fully implement GAO recommendations. By statute,
agencies have 60 calendar days within which to fully adopt GAO recommendations. Any agency
that does not do so is required by statute to promptly notify GAO, which is then to notify four
congressional committees.115 Once aware that an agency is not fully adopting GAO’s
recommendations, Congress could exercise oversight or take legislative action compelling agency
compliance, if it so chooses.116
115
31 U.S.C. §3554(e)(1). The agency has five calendar days after the end of the 60-day period to notify GAO. The
congressional committees to which GAO reports this information are the Senate Committee on Homeland Security and
Governmental Affairs, the Senate Committee on Appropriations, the House Committee on Oversight and Government
Reform, and the House Committee on Appropriations. When notifying these congressional committees, GAO must
provide a comprehensive review of the challenged procurement and a recommendation as to whether Congress should
consider (1) private relief legislation, (2) legislative rescission or cancellation of funds, (3) further investigation by
Congress, or (4) other action to correct an inequity or preserve the integrity of the procurement process. 31 U.S.C.
§3554(e)(1)(A)-(B). GAO must also submit an annual report to Congress including, among other things, a summary of
each instance in which an agency did not fully implement a GAO recommendation. 31 U.S.C. §3554(e)(2).
110
See, e.g., Jason Miller, OPM Blinks, Revisits USAJobs Buy, Gov’t Computer News, Apr. 19, 2004, available at
http://mobile.gcn.com/articles/23_8/25609-1.html (reporting that the chairman of the House Government Reform
Committee threatened the Office of Personnel Management (OPM) with loss of funding for the project after OPM
failed to adopt GAO’s recommendation to re-compete the contract).
111
Geo-Seis Helicopters, 77 Fed. Cl. at 636-38 (Fed. Cl. 2007).
112
77 Fed. Cl. at 638. See 48 C.F.R. §52.215-1(c)(3)(ii)(A) (“Any proposal, modification, or revision, received at the
Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not
be considered.”).
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winning bidder’s] first and second revised proposals.”113 Later, in Grunley Walsh International,
LLC v. United States, the court found that the GAO’s interpretation of the statutory businessvolume requirement for bidders on embassy construction contracts was “irrational because it
misread both the actual language of the statute and the legislative history,” and the State
Department acted irrationally in adopting this interpretation. 114
Although GAO decisions had been reversed in other cases,115 prior courts had not so explicitly
linked following GAO’s recommendations with violations of the APA. 116 Geo-Seis Helicopters,
Grunley Walsh, and related cases117 thus highlight more clearly than previous cases agencies’
dilemmas in complying with CICA. Failure to fully implement GAO recommendations triggers
reporting to Congress and possible congressional oversight, while complying with GAO
recommendations could leave agencies vulnerable to charges of having violated the APA.
Reconsideration and “Appeal” of GAO Decisions
Much like agencies can decline to fully implement GAO recommendations that they are
dissatisfied with, protesters who are dissatisfied with GAO decisions can also potentially avoid
them by (1) requesting reconsideration from GAO or (2) “appealing” to the Court of Federal
Claims. Disappointed agencies and intervenors can also request reconsideration from GAO, but
need not “appeal” to the Court of Federal Claims because the agency can always decline to follow
GAO recommendations.
Reconsideration of GAO Decisions
Any party to a GAO protest can request reconsideration of GAO’s decision from GAO. 118 Such a
request must be made within 10 calendar days after the basis for reconsideration is known or
should be known, whichever is earlier.119 GAO does not consider requests for reconsideration that
lack detailed statements of the factual or legal grounds upon which reversal or modification is
sought, “specifying any errors of law made or information not previously considered.”120 GAO
will also summarily dismiss any reconsideration requests that fail to state valid bases for
reconsideration or are untimely. 121 Filing a request for reconsideration with GAO does not stay
award or performance of a disputed contract like filing a bid protest with GAO does.122
113
Id. at 646.
Grunley Walsh Int’l, LLC v. United States, 78 Fed. Cl. 35, 37-38, 44 (Fed. Cl. 2007).
115
See, e.g., Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48 (2005) (finding for the protester after the GAO
had denied the protest); Blue DOT Energy Co. v. United States, 76 Fed. Cl. 783 (2004) (same).
116
Prior cases tended to avoid language suggesting agency “violations” of the APA even when finding such violations
in their analysis of the merits of the protest. See, e.g., Arora Group, Inc. v. United States, 2004 US Claims LEXIS 267
(Aug. 31, 2004) (using the protester’s language, which mentioned “violations” of the APA, only when stating the
plaintiff’s allegations and not when deciding the merits of the case).
117
See, e.g., Turner Constr. Co. Inc. v. United States, No. 10-195C, 2010 U.S. Claims LEXIS 468 (July 8, 2010)
(finding that the GAO’s recommendation lacked a rational basis and the agency was not justified in following it).
118
4 C.F.R. §21.14(a).
119
4 C.F.R. §21.14(b).
120
4 C.F.R. §21.14(a).
121
4 C.F.R. §21.14(c).
122
Id.
114
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As Table 4 illustrates, GAO receives far fewer requests for reconsideration than bid protests each
year, and GAO seldom changes its recommendations upon reconsideration.123
Table 4. Comparative Number of Requests for Reconsideration and Protests
Received and Closed by GAO Per Fiscal Year
(2001-2009)
Protests
Reconsideration Requests
Fiscal Year
Received
Closed
Received
Closed
2001
1084
1040
62
58
2002
1139
1072
65
61
2003
1269
1181
83
63
2004
1387
1334
98
71
2005
1285
1285
71
56
2006
1270
1224
57
50
2007
1318
1300
93
93
2008
1563
1506
89
71
2009
1898
1822
91
96
2010
2299
2226
79
94116
See, e.g., Follow-Up Hearing on the U.S. Department of Veterans Affairs Service-Disabled Veteran-Owned Small
Business Certification Process: Hearing Before the House Committee on Veterans’ Affairs, November 30, 2011
(discussing GAO’s decision in the Aldevra bid protest, B-405271, B-405524 (October 10, 2011), which found that the
Department of Veterans Affairs is required to procure from veteran-owned small businesses in certain circumstances).
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Compliance with GAO Precedent or Recommendations as a Violation of the
Administrative Procedure Act
Compliance with GAO precedent or recommendations does not necessarily immunize the agency
from all future legal challenges to or liability for its actions. Since 2007, the Court of Federal
Claims has issued several decisions which suggest that an agency could be found to have acted
arbitrarily, capriciously, and in abuse of discretion, in violation of the Administrative Procedure
Act (APA), by following GAO precedents or adopting GAO recommendations. First, in Geo-Seis
Helicopters, Inc. v. United States, the court found that the Military Sealift Command violated the
APA by relying on GAO precedent allowing agencies to issue amendments that extend the bid
closing date after such date has passed.117 According to the court, this precedent was contrary to
the “late is late” rule of Federal Acquisition Regulation Section 52.215-1(c)(3)(ii)(A),118 and the
contracting officer’s reliance on this precedent “render[ed] arbitrary her decision to accept [the
winning bidder’s] first and second revised proposals.”119 Later, in Grunley Walsh International,
LLC v. United States, the court found that GAO’s interpretation of the statutory business-volume
requirement for bidders on embassy construction contracts was “irrational because it misread both
the actual language of the statute and the legislative history,” and the State Department acted
irrationally in adopting this interpretation.120
Although GAO decisions had been reversed in other cases,121 prior courts had not so explicitly
linked following GAO’s recommendations with violations of the APA.122 Geo-Seis Helicopters,
Grunley Walsh, and related cases123 thus highlight agencies’ dilemmas in complying with CICA
more clearly than previous cases did. Failure to fully implement GAO recommendations triggers
reporting to Congress and possible congressional oversight, while complying with certain GAO
recommendations that courts later determine were irrational could leave agencies vulnerable to
charges of having acted arbitrarily.
Reconsideration and “Appeal” of GAO Decisions
Much like agencies can decline to fully implement GAO recommendations that they are
dissatisfied with, protesters who are dissatisfied with GAO decisions can also potentially avoid
117
Geo-Seis Helicopters, 77 Fed. Cl. at 636-38 (Fed. Cl. 2007).
Id. at 638. See also 48 C.F.R. §52.215-1(c)(3)(ii)(A) (“Any proposal, modification, or revision, received at the
Government office designated in the solicitation after the exact time specified for receipt of offers is ‘late’ and will not
be considered.”).
119
Geo-Seis Helicopters, 77 Fed. Cl. at 646.
120
Grunley Walsh Int’l, LLC v. United States, 78 Fed. Cl. 35, 37-38, 44 (Fed. Cl. 2007).
121
See, e.g., Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48 (2005) (finding for the protester after GAO had
denied the protest); Blue DOT Energy Co. v. United States, 76 Fed. Cl. 783 (2004) (same).
122
Prior cases tended to avoid language suggesting agency “violations” of the APA even when finding such violations
in their analysis of the merits of the protest. See, e.g., Arora Group, Inc. v. United States, No. 04-366C, 2004 US
Claims LEXIS 267 (August 31, 2004) (using the protester’s language, which mentioned “violations” of the APA, only
when stating the plaintiff’s allegations and not when deciding the merits of the case).
123
See, e.g., Amazon Web Servs. v. United States, 113 Fed. Cl. 102, 106 (2013) (“[A]n agency’s decision lacks a
rational basis if it implements a GAO recommendation that is itself irrational.”) (internal citations omitted); Turner
Constr. Co. Inc. v. United States, No. 10-195C, 2010 U.S. Claims LEXIS 468 (July 8, 2010) (finding that GAO’s
recommendation lacked a rational basis and the agency was not justified in following it).
118
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them by requesting reconsideration from GAO, or “appealing” to the Court of Federal Claims.124
Disappointed agencies and intervenors can also request reconsideration from GAO, but need not
“appeal” to the Court of Federal Claims because the agency can always decline to follow the
GAO recommendations.
Reconsideration of GAO Decisions
Any party to a GAO protest can request reconsideration of GAO’s decision from GAO.125 Such a
request must be made within 10 calendar days after the basis for reconsideration is known or
should be known, whichever is earlier.126 Pursuant to its regulations, GAO does not consider
requests for reconsideration that lack detailed statements of the factual or legal grounds upon
which reversal or modification is sought, “specifying any errors of law made or information not
previously considered.”127 These regulations also provide for GAO to summarily dismiss any
reconsideration request that fails to state valid bases for reconsideration or are untimely.128
Filing a request for reconsideration with GAO does not stay contract award or performance like
filing a bid protest with GAO does.
As Table 4 illustrates, GAO receives far fewer requests for reconsideration than bid protests each
year, and GAO seldom changes its recommendations upon reconsideration.129
Table 4. Comparative Number of Requests for Reconsideration and Protests
Received and Closed by GAO Per Fiscal Year
(2001-2014)
Reconsideration Requests
Protests
Fiscal Year
Received
Closed
Received
Closed
2001
1084
1040
62
58
2002
1139
1072
65
61
2003
1269
1181
83
63
2004
1387
1334
98
71
2005
1285
1285
71
56
2006
1270
1224
57
50
2007
1318
1300
93
93
2008
1563
1506
89
71
2009
1898
1822
91
96
124
Metzger & Lyons, supra note 46, at 1232, 1248. GAO, in contrast, will not hear protests that have been the subject
of litigation or have been decided on the merits by a court of competent jurisdiction. 4 C.F.R. §21.11(b).
125
4 C.F.R. §21.14(a).
126
4 C.F.R. §21.14(b).
127
4 C.F.R. §21.14(a).
128
4 C.F.R. §21.14(c).
129
See, e.g., Jerome S. Gabig, Jr., Fighting over Government Contracts, 66 ALA. L. REV. 39, 42 (2005).
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Reconsideration Requests
Protests
Fiscal Year
Received
Closed
Received
Closed
2010
2299
2226
79
94
2011
2286
2219
72
73
2012
2339
2371
89
84
2013
2298
2389
75
86
2014
2445
2458
66
58
Source: Congressional Research Service using data from GAO.
“Appeal” of GAO Decisions
In addition to requesting reconsideration from GAO, disappointed protesters can effectively
“appeal” GAO’s decisions to the Court of Federal Claims by filing suit alleging that the agency’s
procurement activities were “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law” in violation of the Administrative Procedure Act (APA). 124130 The focus of
the suit in the Court of Federal Claims is the agency’s procurement activities, not GAO’s decision
per se. However, GAO’s decision makes up part of the agency record that is reviewed by the
123
See, e.g., Jerome S. Gabig, Jr., Fighting over Government Contracts, 66 Ala. L. Rev. 39, 42 (2005).
124
5 U.S.C. §706(2)(A); Superior Helicopter LLC, 78 Fed. Cl. at 186-87 (application of APA to agency procurement
activities). Not all bid protests in the Court of Federal Claims following GAO protests directly “appeal” GAO
decisions, however. In some cases, the protester makes a different argument in the Court of Federal Claims than it
made at GAO. See, e.g., J&H Reinforcing & Structural Erectors, Inc. v. United States, 50 Fed. Cl. 570 (2001). In other
cases, the GAO protest ended without a decision on merits from GAO. See, e.g., Ezenia!, Inc. v. United States, 80 Fed.
Cl. 60 (2007) (protester withdrew its GAO protest after filing suit in the Court of Federal Claims); Heritage of Am.,
LLC v. United States, 77 Fed. Cl. 66 (2007) (GAO protest dismissed as untimely).
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Court of Federal Claims, 125 and the Court of Federal Claims gives some deference to GAO
Court of Federal Claims,131 and the Court of Federal Claims has historically given some
deference to GAO decisions on questions of fact.126132
In reviewing the agency’s action, the court does not substitute its judgment for that of the
agency.127133 Rather, it looks at the agency’s record of the procurement to determine whether the
procurement official’s decision lacked a rational basis, or the procurement procedure involved a
violation of law or procedure. 128134 In determining whether the procurement official’s decision had a
rational basis, the court considers whether (1) the agency relied on factors Congress did not
intend it to consider in making its decision; (2) failed to consider an important aspect of the
problem; or (3) offered an explanation for its action contrary to the evidence before it, or so
implausible it could not be ascribed to a difference of opinion or the product of agency
expertise. 129
A Court of Federal Claims protest, even one “appealing” a prior GAO decision, does not trigger
an automatic stay of the agency’s award of the contract or authorization of performance under it.
Rather, a bid protester in the Court of Federal Claims must file and prevail upon a motion for a
temporary restraining order or preliminary injunction to effect a delay of the agency’s
procurement actions similar to that generally occurring automatically when a GAO protest is
filed.
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
Moshe Schwartz
Specialist in Defense Acquisition
mschwartz@crs.loc.gov, 7-1463
125
130
5 U.S.C. §706(2)(A); Superior Helicopter LLC, 78 Fed. Cl. at 186-87 (application of APA to agency procurement
activities). Not all bid protests in the Court of Federal Claims following GAO protests directly “appeal” GAO
decisions, however. In some cases, the protester makes a different argument in the Court of Federal Claims than it
made at GAO. See, e.g., J&H Reinforcing & Structural Erectors, Inc. v. United States, 50 Fed. Cl. 570 (2001). In other
cases, the GAO protest ended without a decision on merits from GAO. See, e.g., Ezenia!, Inc. v. United States, 80 Fed.
Cl. 60 (2007) (protester withdrew its GAO protest after filing suit in the Court of Federal Claims); Heritage of Am.,
LLC v. United States, 77 Fed. Cl. 66 (2007) (GAO protest dismissed as untimely).
131
31 U.S.C. §3556. Parties to bid protests at the Court of Federal Claims are not strictly limited to the administrative
record from the agency or GAO. They can move to supplement the record, and the court will typically grant such
motions when the “record does not contain sufficient information for the court to render a decision.” Comp. Health
Servs., Inc. v. United States, 70 Fed. Cl. 700, 720 (2006). This includes “fill[ing] gaps concerning the factors the
contracting officer considered in reaching his decision.” Precision Standard, Inc. v. United States, 69 Fed. Cl. 738, 745
(2006).
126132
See, e.g., MTB Group v. United States, 65 Fed. Cl. 516 (2005). The Court of Federal Claims will affirm GAO on
questions of fact, or questions that must be answered by facts and evidence, or inferences therefrom, unless the GAO
decision is arbitrary, capricious, or so grossly erroneous as to imply bad faith. However, on questions of law, or
questions that must be answered by applying relevant legal principles, the Court of Federal Claims gives no deference
to GAO and conducts de novo review. Because most bid protests do not hinge upon factual questions, this means that
most Court of Federal Claims decisions entail independent determinations on the legality of agency contracting
activities.
127
133
Bendix Field Eng’g Corp. v. United States, No. 91-2723, 1991 U.S. Dist. LEXIS 19778, at *6 (D.D.C. Nov. November
15, 1991).
128134
Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).
129
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problem; or (3) offered an explanation for its action contrary to the evidence before it, or so
implausible it could not be ascribed to a difference of opinion or the product of agency
expertise.135
A Court of Federal Claims protest, even one “appealing” a prior GAO decision, does not trigger
an automatic stay of the agency’s award of the contract or authorization of performance under it.
Rather, a bid protester in the Court of Federal Claims must file and prevail upon a motion for a
temporary restraining order or preliminary injunction to effect a delay of the agency’s
procurement actions similar to that generally occurring automatically when a GAO protest is
filed.
Author Contact Information
Kate M. Manuel
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
Moshe Schwartz
Specialist in Defense Acquisition
mschwartz@crs.loc.gov, 7-1463
135
Alion Science & Tech. Corp. v. United States, 69 Fed. Cl. 14, 25 (2005) (quoting Motor Vehicle Mfrs. Ass’n of the
United States v. State Farm Ins. Co., 463 U.S. 29, 43 (1983)).
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