GAO Bid Protests: An Overview of
Timeframes and Procedures
Kate M. Manuel
Legislative Attorney
Moshe Schwartz
Specialist in Defense Acquisition
October 4, 2010
Congressional Research Service
7-5700
www.crs.gov
R40228
CRS Report for Congress
P
repared for Members and Committees of Congress

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GAO Bid Protests: An Overview of Timeframes 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, the 111th Congress is considering legislation (S. 3454) that
would grant GAO permanent authority to hear protests regarding the issuance of certain task and
delivery orders valued in excess of $10 million.
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. GAO’s bid-protest process includes some unique
features—most notably, the stay of contract award or performance commonly triggered by a GAO
protest—that make GAO a desirable forum for disappointed bidders and offerors.
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 timeframe.
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. Agencies can, however, 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. However, compliance with GAO
recommendations, or reliance on GAO precedent, does not immunize agencies from court
challenges to their procurement actions. 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 Timeframes 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 ..................................................................................................... 3
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
Timeframes 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
Timeframes for Other Optional Events in the GAO Bid-Protest Process .......................... 9
Automatic Stays of Contract Award or Performance During GAO Protests .......................... 10
Agency Override of Bid-Protest Stays ........................................................................... 11
GAO and Agency Override Determinations................................................................... 12
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. Timeframes 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 Timeframes 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
17% between FY2007 and FY2008 and by 20% between FY2008 and FY2009, 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,
the 111th Congress is considering legislation that would grant GAO permanent authority to hear
protests regarding the issuance of certain task and delivery orders valued in excess of $10
million.5
This report is one of two providing Congress with background on the GAO bid-protest process. It
provides an overview of the timeframes and procedures in a GAO bid protest, including (1) what

1 GAO, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2009, Jan. 8, 2010, available at
http://www.gao.gov/special.pubs/bidpro09.pdf (noting that GAO handled 1,989 cases in FY2009). This includes 91
requests for reconsideration and 168 protests filed as a result of GAO’s expanded jurisdiction.
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 See National Defense Authorization Act for FY2011, S. 3454, § 833 (amending Section 2304c(e) of Title 10 of the
United States Code by striking the language that made GAO’s jurisdiction over such protests temporary). This
amendment would, if enacted, result in GAO having permanent jurisdiction over protests involving the issuance by
defense agencies of task or delivery orders valued in excess of $100 million. It would not remove a similar “sunset
date” applicable to the issuance by civilian agencies of task or delivery orders valued in excess of $10 million. See 41
U.S.C. § 253j(e)(3) (“This subsection shall be in effect for three years, beginning on the date that is 120 days after
January 28, 2008.”).
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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 timeframes 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.6
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.7 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. Congress has thus authorized three
administrative and judicial forums to hear bid protests against the federal government.
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.8
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
them. In Perkins v. Lukens Steel Company, the Supreme Court said 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.9 The Court said that these procurement laws were strictly for the government’s
benefit, “for the purpose of keeping its own house in order.”10
Several decades later, the federal courts came to hold that the Administrative Procedure Act
(APA) authorized them to hear bid protests,11 and Congress later explicitly granted bid protest
jurisdiction to GAO with the Competition in Contracting Act (CICA) of 1984.12 However, GAO’s
long history of handling bid protests, coupled with several unique aspects of the GAO bid-protest

6 For more on the GAO generally, see CRS Report RL30349, GAO: Government Accountability Office and General
Accounting Office, by Frederick M. Kaiser.
7 31 U.S.C. § 3551(1)(A)-(D).
8 The Budget and Accounting Act of 1921, P.L. 67-13, § 305, 42 Stat. 20, 24 (June 10, 1921).
9 310 U.S. 113, 132 (1940).
10 Id. at 127.
11 Congress passed the APA in 1946, but it was not until 1970 that the federal 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).
12 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.
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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.13 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
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.”14 GAO has attempted to meet these goals through
the use of timeframes and procedures partly prescribed by statute and partly established by
administrative rule making.15

13 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.
14 31 U.S.C. § 3554(a)(1).
15 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).
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What Issues Can be Protested with GAO?
Under CICA, disappointed bidders or offerors can protest16 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.17 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.18
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;19 and determinations to procure particular requirements
through the Minority Small Business and Capital Ownership Development
Program (commonly known as the 8(a) Program);20
• 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;21
• procurements by agencies other than federal agencies as defined in Section 3 of
the Federal Property and Administrative Services Act;22

16 A protest is, by definition, a written objection. 31 U.S.C. § 3551(1).
17 31 U.S.C. § 3551(1)(A)-(D).
18 See Bid Protest Annual Report, supra note 1. GAO’s jurisdiction over protests involving the issuance of task and
delivery orders valued in excess of $10 million, in particular, is temporary. See supra note 5.
19 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.
20 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.
21 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.
22 P.L. 81-152, 63 Stat. 377 (1949). Examples of such agencies include the U.S. Postal Service and the Federal Deposit
(continued...)
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• 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;23
• suspensions or debarments of contractors by agencies;24 or
• decisions by agency tender officials to file or not file protests in connection with
public-private competitions.25
Who Can File or Be a Party to a GAO Protest?
By statute, a GAO bid protest may be filed by any “interested party,”26 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.”27 This focus upon direct economic interest in
determining who is an interested party means that a larger number of contractors can bring pre-
award 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.28 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
for the award if the protest is sustained for them to be recognized as interested parties.29 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 procurement. 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”

(...continued)
Insurance Corporation.
23 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).
24 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.
25 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.
26 31 U.S.C. § 3553(a).
27 31 U.S.C. § 3551(2)(A).
28 GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 5 (8th ed. 2006), available at
http://meetings.abanet.org/webupload/commupload/PC402000/relatedresources/
GAOGuidetoBidProtests(EighthEditiionMay2006).pdf.
29 See, e.g., Arora Group, B-288127 (Comp. Gen. 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).
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to intervene.30 Similarly, when the contract has been awarded, GAO permits the winning bidder
or offeror to intervene.31
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.32 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).33 In their filings, protesters may also
request protective orders, specific documents from the agency, or a hearing before GAO.34
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 so35 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.36 Hearings are relatively rare in GAO protests. Between FY2005 and FY2009, only 6%-
12% of GAO cases annually entailed hearings.37 Moreover, when held, hearings are less formal
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.38
All these factors, as well as the strict timeframes 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.39 Their protests can also take longer
to resolve.40 However, some commentators have wondered (1) whether GAO’s comparatively

30 4 C.F.R. § 21.0(b)(1).
31 Id.
32 4 C.F.R. § 21.1(f).
33 4 C.F.R. § 21.4(c)(1)-(8).
34 4 C.F.R. § 21.1(d)(1)-(3).
35 Bid Protests at GAO, supra note 28, 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.
36 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).
37 Bid Protest Annual Report, supra note 1.
38 4 C.F.R. § 21.7(b).
39 Robert S. Metzger & Daniel A. Lyons, A Critical Reassessment of the GAO Bid-Protest Mechanism, 6 Wis. L. Rev.
1225, 1232 (2007).
40 Id.
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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.”41
Timeframes Involved in GAO Protests: “Expeditious Resolution”
GAO is to adhere to strict timeframes—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.42 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 case43 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 timeframes for the main steps in GAO bid protests.
Initial Filings by Interested Parties
The timeframes 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.44 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.”45 Protests filed after these deadlines are untimely, and GAO generally dismisses
them.46 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.”47 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.48

41 Id. at 1241.
42 Bid Protests at GAO, supra note 28, at 7.
43 Metzger & Lyons, supra note 39, 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.
44 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.
45 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
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).
46 4 C.F.R. § 21.2(b)-(c).
47 4 C.F.R. § 21.2(c).
48 28 U.S.C. § 2401(a) (allowing filing within 6 years of the events prompting the protest, in the case of post-award
protests).
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GAO Bid Protests: An Overview of Timeframes and Procedures

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.49 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.50 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.51
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.52 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.53
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.54
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.55 If the protester fails to submit such comments, GAO
is required, by its own regulations, to dismiss the protest.56

49 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).
50 31 U.S.C. § 3553(c)(1) & (d)(1).
51 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).
52 31 U.S.C. § 3553(b)(2)(A).
53 4 C.F.R. § 21.3(c).
54 4 C.F.R. § 21.3(b).
55 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).
56 4 C.F.R. § 21.3(i).
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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.57 This timeframe 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.58 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,59 even before the agency files its report with GAO.60 GAO can similarly
issue a summary decision on a protest at any time.61
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. Timeframes 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 Timeframes
Express Timeframes
Filing of protest with GAO
No more than 10 calendar days after
No more than 10 calendar days after
the protested conduct
the protested conduct
Notice of the protest sent from
Within 1 working day of the protest’s
Within 1 working day of the protest’s
GAO to the agency
being filed
being filed
Agency’s report on the protested
Within 30 calendar days of the
Within 20 calendar days of the
procurement sent to GAO
agency’s receiving notice of the
agency’s receiving notice of the
protest
protest
Protester’s reply to the agency’s
Within 10 calendar days of the filing of Within 5 calendar days of the filing of
report
the agency report
the agency report
GAO’s decision on the protest
Within 100 calendar days of the
Within 65 calendar days of the
protest’s being filed
protest’s being filed
Source: Congressional Research Service.
Timeframes for Other Optional Events in the GAO Bid-Protest Process
Similarly short timeframes 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;62

57 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).
58 31 U.S.C. § 3554(a)(2); 4 C.F.R. § 21.10.
59 31 U.S.C. § 3554(a)(4).
60 31 U.S.C. § 3553(b)(3).
61 4 C.F.R. § 21.10(e).
62 4 C.F.R. § 21.10(c).
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• protesters who want GAO to hold hearings on the protest must request a hearing
“as early as possible in the protest process”;63
• 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;64 and
• parties must file written comments on any hearing within five calendar days of
the hearing.65
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.66 Similarly, with post-award bid
protests, the agency must withhold authorization of performance under the contract while the
protest is pending.67 If authorization has not been withheld, the agency must “immediately direct
the contractor to cease performance under the contract” until the protest is resolved.68
These bid-protest stays, sometimes called “CICA stays,” are a key aspect of the GAO bid-protest
process,69 which Congress intended to strengthen.70 Congress did not provide for similar stays
when bid protests are filed with the Court of Federal Claims. Rather, bid protesters filing suit in
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.71 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

63 Bid Protests at GAO, supra note 28, at 20.
64 4 C.F.R. § 21.3(g).
65 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.
66 31 U.S.C. § 3553(c)(1).
67 31 U.S.C. § 3553(d)(1).
68 Id.
69 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).
70 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).
71 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).
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protest.72 These commentators also worry that the public interest, as embodied in the contract to
be awarded or performed, is neglected during the stay.73
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.74 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,”75 or (2)
“performance of the contract is in the best interests of the United States.”76 Only “urgent and
compelling circumstances” may be asserted when GAO bid protests are filed prior to the award of
the contract.77 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.78
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.79 Some
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.”80

72 Metzger & Lyons, supra note 39, 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.
73 Id. at 1269.
74 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).
75 31 U.S.C. § 3553(c)(2)(A) & (d)(3)(C)(II).
76 31 U.S.C. § 3553(d)(3)(C)(II).
77 31 U.S.C. § 3553(c)(2).
78 31 U.S.C. § 3553(c) & (d).
79 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
(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://
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).
80 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. 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.’”).
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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.81
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
• Cockpit video recording systems recorders for F/A-18
Afghanistan: agency record showed adverse
aircraft: agency record showed that the agency
consequences, in the form of security breaches
conducted a proper evaluation in making the initial
at military installations, without the override; the
award; the override involved a 1 year contract; failure
override was only for a bridge contract, with the
to override would interfere with the aircraft’s
agency planning a new solicitation within a year;
deployment to Bosnia and troop training; and the
and the only alleged harm to the protester was
public interest required that the troops be well
the dissatisfaction of its employees.a
equipped.d
• Maintenance & refuse services at Navy housing
• Training services for a “top gun” school: protester
facility: agency record showed that services
al eged only speculative harm, claiming it would never
under the contract were essential to the health,
“get on base again” if it lost the protest; the agency
safety, and morale of military personnel; the
record showed that the contract was key to the
protester’s allegations of harm were speculative;
success of a weapons school whose operations had
and the public interest would be harmed if the
already been interrupted; and protecting national
protester, which was not a smal business, got an
security by ensuring adequate training was in the public
award set aside for a small business.b
interest.e
• Maintenance & support services for Border
• Spectrum management engineering services: agency
Patrol academy: agency record showed that the
record showed that performance under the protested
protester, who was the incumbent contractor,
contract was time-critical and that the winning offeror
had performed inadequately and could not
was only source with personnel qualified to perform
continue to perform during the protest; and time
the work.f
pressures required the award of a new contract.c
Source: Congressional Research Service.
Notes: Al 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 Services, 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).
d. Teac Am., Inc. v. U.S. Dep’t of the Navy, 876 F. Suppl. 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 GAO can do is report on agency overrides to Congress, as it did

81 31 U.S.C. § 3553(c)(1) & (d)(3).
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in its annual reports until FY2002.82 Potential congressional awareness of agency override
determinations may deter agency overrides.
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 Claims83—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.84
Although courts once exempted agency determinations as to the “best interests of the United
States” from judicial review85 and gave substantial deference to agency determinations as to “best
interests” and “urgent and compelling circumstances,”86 the Court of Federal Claims has not
infrequently enjoined agency overrides after subjecting the agency’s override determination to
“searching inquiry.”87 Override determinations based on considerations of national security or
national defense sometimes receive greater deference from the Court of Federal Claims,88 but not
even these considerations guarantee victory for agencies.89

82 Compare GAO, GAO Bid Protest Annual Report to the Congress for Fiscal Year 2003, Jan. 30, 2004, available at
http://www.gao.gov/special.pubs/bidpro03.pdf (not reporting on agency override determinations) with GAO, GAO Bid
Protest Annual Report to the Congress for Fiscal Year 2002, Jan. 29, 2003, available at http://www.gao.gov/
special.pubs/bidpro02.pdf (reporting on agency override determinations).
83 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.
84 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).
85 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.
86 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).
87 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. Rev. 91, 93 (2006) (describing 2006 as a
“watershed” year).
88 See, e.g., SDS Int’l, 55 Fed. Cl. at 366 (stating that courts must give “due regard” to the interests of national defense
(continued...)
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Basis and Effects of GAO Decisions
GAO is charged by statute with “deciding” all bid protests filed in accordance with GAO
regulations.90 When deciding a protest, GAO is not to substitute its judgment for the agency’s, or
conduct de novo review of agency procurement activities and processes.91 Rather, GAO is to
consider only whether the agency complied with procurement statutes or regulations, as well as
had reasonable bases and adequate documentation, in its decision making.92
Denials, Sustainments, and GAO Recommendations
When GAO finds no illegalities or other problems, it is to deny 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 problems, however, it would sustain the protest and may
recommend that the agency (1) refrain from exercising its options under the contract, (2) re-
compete the contract, (3) issue a new solicitation, (4) terminate the contract, (5) 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.”93 In deciding which of these options to
recommend, GAO considers all the circumstances surrounding the procurement or proposed
procurement.94 This includes the seriousness of the agency’s procurement deficiency, the degree
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.95 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.96
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,

(...continued)
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.’”).
89 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 80, 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).
90 31 U.S.C. § 3552(a).
91 See, e.g., Baker Support Sys., B-257054.2 (Comp. Gen. Jan. 20, 1995).
92 See, e.g., 31 U.S.C. § 3552(a) (agency compliance with statutes and regulations); McWane & Co., B-280374 (Comp.
Gen. Mar. 1, 1996) (agency evaluation’s having a reasonable basis and being consistent with evaluation criteria in the
request for proposals); Moheat Env. Servs., B-270538 (Comp. Gen. Nov. 20, 1996) (agency evaluation’s having a
reasonable basis and adequate documentation even if otherwise inconsistent with the evaluation criteria).
93 31 U.S.C. § 3554(b)(1)(A)-(G).
94 4 C.F.R. § 21.8(b).
95 Id.
96 See Ameron, Inc. v. United States Army Corps of Eng’gs, 809 F.2d 979, 986 (3d Cir. 1986).
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including reasonable attorneys’ fees; the fees for consultants and expert witnesses; and the
expenses of preparing the bid or protest.97 When GAO recommends that an agency pay costs, the
agency must either pay the costs promptly or report to the Comptroller General its reasons for not
paying.98 The agency must also attempt to reach an agreement with the protester on the costs to be
paid.99 If agreement cannot be reached, the protester can request that GAO recommend to the
agency an amount to be paid.100
Legal Effect of GAO Recommendations
Even when GAO finds that the agency engaged in illegal or improper conduct 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.101
Agencies typically fully adopt GAO recommendations, nonetheless, as Table 3 illustrates.
According to GAO’s annual reports to Congress, in only four cases between FY2001 and FY2009
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
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.102
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.103 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.104 It was

97 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).
98 31 U.S.C. § 3554(c)(3)(A)-(B). Where 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).
99 31 U.S.C. § 3554(c)(4).
100 Id.
101 Metzger & Lyons, supra note 39, 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).
102 31 U.S.C. § 3554(b)(3).
103 B-400278; B-400308, 2008 U.S. Comp. Gen. LEXIS 193 (September 19, 2008).
104 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
(continued...)
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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 disagrees with GAO’s construction of the Small Business Act.105
Congress later enacted legislation that amended the statutory text that formed the basis for GAO’s
recommendations.106
Table 3. Number of Cases in Which Agencies Did Not Fully Adopt GAO
Recommendations Per Fiscal Year
2001-2009
Fiscal Year
Number of Cases
2001 0
2002 1a
2003 2b
2004 0
2005 0
2006 0
2007 0
2008 0
2009 1c
Source: Congressional Research Service using data from GAO.
a. Rockwel Elec. Commerce Corp., B-286201.6, .8 (Comp. Gen. Aug. 30, 2001 and Mar. 5, 2002).
b. Consolidated Eng’g Servs., Inc., B-291345, .2 (Comp. Gen. Dec. 23, 2002); Symplicity Corp., B-291902,
April 29, 2003.
c. Mission Critical Solutions, B-401057 (Comp. Gen. Dec. May 4, 2009).
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.107 Once aware that an agency is not fully adopting GAO’s recommendations,

(...continued)
for Small Businesses: Recent Developments in the Law Regarding Precedence Among the Set-Aside Programs and Set-
Asides Under Indefinite-Delivery/Indefinite-Quantity Contracts, by Kate M. Manuel.
105 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 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
Concern Programs, Aug. 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.).
106 See Small Business Jobs and Credit Act of 2010, P.L. 111-240, § 1347,—Stat.—(Sept. 27, 2010).
107 31 U.S.C. § 3554(b)(3). The agency has five calendar days after the end of the 60-day period to notify GAO. The
(continued...)
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Congress can exercise oversight or take legislative action compelling agency compliance, if it so
chooses.108
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.109 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),110 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.”111 Later, in Grunley Walsh International,
LLC v. United States, the court found that the 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.112
Although GAO decisions had been reversed in other cases,113 prior courts had not so explicitly
linked following GAO’s recommendations with violations of the APA.114 Geo-Seis Helicopters,

(...continued)
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).
108 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).
109 Geo-Seis Helicopters, 77 Fed. Cl. at 636-38 (Fed. Cl. 2007).
110 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.”).
111 Id. at 646.
112 Grunley Walsh Int’l, LLC v. United States, 78 Fed. Cl. 35, 37-38, 44 (Fed. Cl. 2007).
113 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).
114 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).
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Grunley Walsh, and related cases115 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.116 Such a
request must be made within 10 calendar days after the basis for reconsideration is known or
should be known, whichever is earlier.117 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.”118 GAO
will also summarily dismiss any reconsideration requests that fail to state valid bases for
reconsideration or are untimely.119 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.120
As Table 4 illustrates, GAO receives far fewer requests for reconsideration than bid protests each
year, and GAO seldom changes its recommendations upon reconsideration.121

115 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).
116 4 C.F.R. § 21.14(a).
117 4 C.F.R. § 21.14(b).
118 4 C.F.R. § 21.14(a).
119 4 C.F.R. § 21.14(c).
120 Id.
121 See, e.g., Jerome S. Gabig, Jr., Fighting over Government Contracts, 66 Ala. L. Rev. 39, 42 (2005).
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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
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).122 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
Court of Federal Claims,123 and the Court of Federal Claims gives some deference to GAO
decisions on questions of fact.124

122 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).
123 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).
124 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
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In reviewing the agency’s action, the court does not substitute its judgment for that of the
agency.125 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.126 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.127
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
Moshe Schwartz
Legislative Attorney
Specialist in Defense Acquisition
kmanuel@crs.loc.gov, 7-4477
mschwartz@crs.loc.gov, 7-1463




(...continued)
activities.
125 Bendix Field Eng’g Corp. v. United States, 1991 U.S. Dist. LEXIS 19778, at *6 (D.D.C. Nov. 15, 1991).
126 Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332 (Fed. Cir. 2001).
127 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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