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Government Protest Bid

A bid protest is a legal mechanism by which any “interested party” may contest the procedure or outcome of a government contract award. A protester is typically a third party aggrieved by the actions of a government agency which result in a contract going to an awardee viewed by the protester as non-deserving. The law permits protests to be resolved through formal as well as informal procedures. A protester who prevails is entitled to a remedy, usually in the form of corrections in the bidding process or monetary damages.

Bid protests can be both complicated and time-consuming. Bambi Faivre Walters, PC can help you evaluate your concerns about bid improprieties for possible filing under protest. Since the time for filing the bid protest may be very limited (typically 10 days after award for post-award protests for GAO and agency protests), you should act quickly if you are considering filing a bid protest.

Four Bid Protest Forums

There are four different forums for a bid protest: (1) the General Accounting Office (“GAO”), (2) the awarding agency; (3) the U.S. Court of Federal Claims; or (4) the U.S. district courts. There are advantages and drawbacks to each, and selecting the best forum is critical to prevailing on a protest.

GAO Bid Protest

The GAO, the most popular forum in terms of numbers of protests received, is relatively inexpensive and independent from the awarding agency. Significantly, if certain timeliness requirements are met, you may obtain an automatic stay of contract award or suspension of performance under the Competition in Contracting Act. See 31 U.S.C. section 3553. However, the GAO has been criticized because of the minimum amount of discovery it makes available to protesters. The agency’s bid protest regulations are promulgated under the Code of Federal Regulations (4 CFR Part 21). A virtual library of Comptroller General decisions is also available at the GAO website.

Federal Agency Bid Protest

The federal agencies also provide an inexpensive forum. The federal agency bid protest procedures are relatively informal and provide little if any means to obtain true discovery. Also, many protesters believe that bringing a post-award bid protest to the agency that was responsible for making the contract award at issue is futile. On the other hand, protesting to the agency does not preclude the protester from later filing a protest at the GAO or the courts if the timeliness requirements are met. Moreover, protesting to the federal agencies concerning solicitation defects prior to award is one inexpensive way to demonstrate to the agency that your concerns should be seriously taken. Executive Order 12979 established the agency-level bid protest policy framework which is today promulgated under FAR Subpart 33.103. Furthermore, a number of agencies have also issued internal procedures for handling protests including the Army Materiel Command (AMC), NASA, and other agencies.

COFC Bid Protest

The U.S. Court of Federal Claims (COFC) provide a more formal forum and is generally more expensive than the GAO and the federal agencies. The COFC derives its jurisdiction to consider bid protests from the Tucker Act (28 U.S.C. §1491(a)(1), as well as the Administrative Dispute Resolution Act of 1996 (28 U.S.C. §1491(b)). The Court is authorized to hear protests filed by interested parties regarding federal agency procurements. The COFC web site posts recent bid protest cases as well as bid protest rules.

District Court Bid Protests

Similar to the COFC Bid Protest, the U.S. district courts provide a more formal forum and are generally more expensive than the GAO and the federal agencies. The U.S. Supreme Court held in Scanwell Labs., Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970) that the Administrative Procedure Act confers to bidders the right to challenge agency actions. However, only injunctions or declaratory judgments were available to protesters under this jurisdiction. The passage of the Administrative Dispute Resolution Act of 1996 expanded available remedies under this forum to include monetary relief. The U.S. District Court web sites include information about court rules and recent cases.

Last Modified: December 5th, 2009