Legal Insights: Choosing a Bid Protest Forum
Winter 2008

Protests of federal solicitations or contract awards are usually pursued in one of three forums: the procuring agency, the Government Accountability Office (GAO) or the Court of Federal Claims. These forums offer concurrent jurisdiction over bid protests, meaning a potential contractor may bring its protest directly to any of these forums. In choosing a protest forum, there are competing factors the protester must consider. The primary distinctions among these three forums are the formality of their procedures, their timeliness requirements and their powers.

Agency protests feature the most informal procedures. The procedural framework for agency protests is set forth in FAR 33.103. This regulation states that agencies should provide for inexpensive, informal, procedurally simple and expeditious resolution of protests. The FAR then outlines a bare bones protest procedure beginning with submission of a written protest. The protest submission need not be in any particular format. Agencies may review the protest at a level above the contracting officer or the contracting officer may review the protest.

Pre-award protests must be filed before receipt of proposals. Post-award protests are to be brought no later than 10 days after the basis is known or should have been known, whichever is earlier. Upon receipt of a protest, a contract is not to be awarded or performed unless the agency justifies in writing proceeding with the procurement for urgent and compelling reasons.

Agencies are to make their best efforts to resolve agency protests within 35 days after the protest is filed. To the extent permitted by law and regulation, the parties may exchange relevant information. Agency protest decisions are supposed to be well-reasoned and explain the agency position.

The FAR provides no further procedural requirements for an agency protest. Agencies may add protest procedures in their individual regulations. However, generally speaking, these regulations do not entail much additional process.

An agency protest is simple to pursue and does not require a lawyer. On the other hand, simplicity is a two-edged sword. There are few procedural protections for the protester in most agency protest procedures. For example, there is no requirement that the agency provide a response to the protest or that it produce documents. There also is no requirement that the protest decision be rendered promptly other than the requirement that the agency use its “best efforts” to resolve protests within 35 days. In practice, this 35-day deadline is frequently ignored. The most significant disadvantage to an agency protest is that it is the agency itself that decides the protest and, in some instances, it is the contracting officer. Agencies are notoriously reluctant to reverse their own procurement decisions.

In contrast to the agencies, the GAO offers a much more detailed protest procedure and thus, more due process protections for the protester. See, 4 CFR §§ 21.0 et seq. A protest to the GAO is initiated by filing a protest submission with the GAO. As in agency protests, this document does not need to adhere to any particular format.

Within 30 days of the filing of the protest, the agency is required to provide an agency report, including a detailed statement of the basis for the agency decision. The report must also include a copy of the administrative record of the procurement.

If the protester is represented by counsel, a protective order may be entered which provides for production of procurement-sensitive documents to counsel, so long as this information is not disclosed to the protester or other interested parties. Following service of the agency report, the protester may request production of additional documents and shall file comments on the agency report. Thereafter, GAO may set a hearing on the protest. If there is an adverse decision, GAO will entertain (although hardly ever grant) a request for reconsideration.

Like agency protests, a pre-award protest to the GAO must be brought before receipt of proposals and a post-award protest has to be filed within 10 days of when the protester knew or should have known of the basis of the protest. Also like an agency protest, a protester may pursue its protest without legal counsel,
although this is not recommended where the issues are relatively complex or the procurement has a high dollar value.

GAO protests are administered by an assigned GAO attorney. Decisions are drafted by the assigned attorney and then approved by senior lawyers in the GAO’s procurement law group. GAO releases its decision within 100 days from the date of filing. Rarely is a GAO protest decision not timely issued.

While protests are resolved quickly by GAO, this can also be a disadvantage. The speed at which these protests move requires focused attention. The protester has to be prepared to file its submissions on an accelerated timetable. The slightest deviation from the GAO schedule will result in a dismissal of the protest. Another disadvantage is that the GAO exercises only an advisory role. Because the GAO is part of the legislative branch, it cannot constitutionally order an executive agency to take any particular action or issue injunctions. Accordingly, its decisions are in the form of recommendations. However, these recommendations are almost always followed by the agencies. Under 31 USC § 3554(e)(1), the head of the GAO, the Comptroller General, reports to Congress “any case in which a Federal agency fails to implement fully a recommendation of the Comptroller

Court of Federal Claims
The most formal protest procedure is offered by the Court of Federal Claims. The Court provides true judicial review of agency procurement decisions. The Rules of the Court of Federal Claims closely track the Rules of Civil Procedure used to resolve any federal lawsuit. A protest begins with the filing of a complaint. The complaint, like other pleadings before the Court, are expected to conform to standard legal requirements.

The Government files an answer to the complaint and may allege a counterclaim. At this time, the Government also submits to the Court and the protester the administrative record of the procurement. The parties can then engage in discovery and file motions for summary judgment. Many, if not most, protests before the Court are resolved on a form of motion for summary judgment seeking a decision on the basis of the administrative record. If the protest cannot be resolved on pre-trial motions, it goes to trial before the assigned judge. The judge decides the protest; no jury trials are permitted in the Court.

The prime advantage of the Court of Federal Claims is that it offers the maximum due process protections to the protester, equivalent to those available in any federal court. These protections, however, come at a price. A judicial protest is likely to be more expensive than an agency or GAO protest. Unless the protester is an individual, the protester must be represented by legal counsel. A protest in the Court of Federal Claims requires a thorough knowledge of federal practice and procedure. A judicial protest will likely move more slowly than an agency protest or GAO protest. Yet, if the Court is able to resolve the protest on a motion for judgment on the administrative record, the action should not take significantly longer to resolve than a GAO protest.

Unlike the GAO, the Court has the power to issue injunctions binding on the agency. Although the award and performance of contracts are automatically stayed during the pendency of agency and GAO protests, these stays can be overridden upon an agency determination of a compelling need. In that situation, the protester’s only chance to re-impose the stay is to seek an injunction from the Court.

Another advantage to the Court of Federal Claims is that it is not subject to the same timeliness requirements of an agency or GAO protest. Although pre-award protests should be brought to the Court before the close of bidding, post-award protests are not subject to the 10-day time limit for agency and GAO protests. The Court’s only standard for determining if a post-award protest is untimely is whether the delay in bringing the protest was unreasonable and unexcused and prejudiced the Government or other parties. Software Testing Solutions, Inc. v. United States, 58 Fed. Cl. 533, 535 (2003). In one case, the Court deemed timely a protest filed 14 months after the protester knew or should have known of the basis of the protest. CW Government Travel, Inc. v. United States, 61 Fed. Cl. 559, 569 (2004).

Sequential Protests
A protester is not necessarily bound to the result of its initial choice of forum. Protesters have the right to bring the same protest sequentially in two or all three of the bid protest forums. In other words, a protester may first bring its protest to the agency or GAO and, if it is not satisfied with the result, then to another forum. For example, should the agency dismiss a protest, the protester may submit the protest to the GAO, so long as the agency protest was timely filed and the GAO protest is filed within 10 days of initial adverse action by the agency. Similarly, should the agency or GAO dismiss a protest, the protester can file in the Court of Federal Claims. Only if a protest is first brought in the Court can it not later be filed in another forum. These subsequent protests are not appeals. In each instance, the GAO or Court of Federal Claims reviews the procurement decision for itself. They do not consider whether the protest was properly dismissed in the previous forum.

Potential contractors planning to protest a federal procurement decision must decide whether to bring that protest to the agency, the GAO or the Court of Federal Claims. Each of these forums offers their own advantages and disadvantages. In most situations, however, the GAO offers the best balance of cost and procedural protections. Most lawyers would not recommend to their clients an agency protest. The Court of Federal Claims may be the appropriate forum if there are concerns with meeting the GAO’s timeliness requirements. Where the value of the procurement justifies it, a protester may also protest in one forum and, if unsuccessful, bring the protest to the GAO and/or the Court of Federal Claims.

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