Bid Protests at GAO: A Descriptive Guide
ACKNOWLEDGMENT OF A PROTEST
Upon receipt of a protest, GAO generally sends the protester a written notice acknowledging receipt of the protest. 4 C.F.R. § 21.3(a). In appropriate cases, GAO may issue a protective order package, a hearing schedule, and/or a status conference notice simultaneously with the acknowledgment notice. The only instance in which an acknowledgment notice is not sent is where the protest is summarily dismissed, in which case a notice of dismissal will be furnished.
The acknowledgment notice includes important information. First, it provides the file number by which GAO identifies the protest. That number consists of a letter followed by six digits (e.g., B-123456). Second, the notice contains the date on which the contracting agency's response to the protest, the agency report, is due. The notice warns that GAO will assume that the protester receives the report on that date and may dismiss the protest if GAO does not receive the protester’s written comments in response to the report within 10 days of that date. Third, the notice contains the date by which a written decision will be issued by GAO.
Finally, the acknowledgment notice identifies the GAO attorney or the GAO contact person handling the protest and that individual's telephone number. That individual is the GAO employee who should generally be contacted with any procedural questions about the protest. Inquiries about the status of the case may be directed to GAO's bid protest status line at (202) 512-5436. This telephone number and the previously referenced official fax number also appear on the notice.
CONFIRMATION OF REPORT REQUIREMENT
Within 1 day of receipt of the protest, GAO will telephone the contracting agency to advise it that a protest has been filed. 4 C.F.R. § 21.3(a). That telephone call is important because it is the official notice that may trigger a statutory stay of the award or performance of a contract pending GAO's decision. The call also triggers the agency report requirement. For this reason, protesters should file their protests sufficiently in advance of the expiration of the statutory period after award or after a statutorily required debriefing to allow GAO time to notify the agency that a protest has been filed for purposes of triggering the statutory stay. GAO follows up the telephone notice with a written confirmation of the report requirement that includes essentially the same information provided to the protester in the acknowledgment notice.
Immediately after receiving notice of the protest from GAO, the contracting agency must give notice of the protest to the contractor if an award has been made; if no award has been made, the agency must notify all bidders or offerors that have a substantial chance of receiving an award. GAO may permit other firms to participate in the protest as "intervenors." 4 C.F.R. § 21.0(b). If the award has been made, GAO permits only the awardee to intervene. If the award has not been made, firms wishing to intervene should so advise GAO and the other parties, and then contact GAO to learn whether they will be permitted to intervene. The notice of intervention can be a brief letter that includes the name, address, and telephone and fax numbers of the intervenor or its representative, if any, and advises GAO and all other parties of the intervenor's status.
If GAO determines that it is appropriate to dismiss the protest on jurisdictional or procedural grounds, GAO will not review the merits of the protest, and thus will not request an agency report. 4 C.F.R. § 21.5. For example, if the protest is untimely on its face or if it raises issues that GAO does not consider (such as the awardee's business size status), GAO will dismiss it without requiring the contracting agency to submit a report. GAO may also summarily dismiss individual grounds of protest. Id. For example, if a protest alleges that a solicitation uses overly restrictive technical specifications and uses the incorrect definition of a small business, GAO will dismiss the latter ground (which is for consideration by the Small Business Administration, not GAO), but may request an agency report on the remaining ground.
As a general rule, GAO will dismiss a protest that fails to set forth a detailed statement of the legal and factual grounds of protest or that fails to state legally sufficient grounds of protest. 4 C.F.R. § 21.5(f), citing 4 C.F.R. § 21.1(c)(4) and 4 C.F.R. § 21.1(f), respectively.
Once the protest is received, the contracting agency and/or an intervenor may request that GAO summarily dismiss the protest or some of its grounds. 4 C.F.R. § 21.3(b). Where summary dismissal may be appropriate, the request for dismissal should be made as soon as practicable after the protest is filed. Id. The request should be in writing and sent to all parties. Unless it is clear that dismissal is appropriate, GAO will generally permit the protester to file a written response to the dismissal request. GAO will promptly address the dismissal request. If GAO grants the request, either in whole or in part, GAO will not require the agency to prepare a report in response to the protest or in response to those grounds of protest that were dismissed.
If the record in a protest contains "protected" information, that is, a company's proprietary or confidential data or the agency's source-selection-sensitive information, that information cannot be made public. In order to allow limited access to protected information relevant to a protest, GAO may issue a protective order. 4 C.F.R. § 21.4. The protective order strictly controls who has access to protected material and how that material is labeled, distributed, stored, and disposed of at the conclusion of the protest. A protective order package, which includes the protective order and the application(s) for access to material under a protective order, generally will be issued soon after a protest is filed but, in appropriate cases, may be issued simultaneously with the acknowledgment notice. Where a protective order is in place for a protest, parties may file documents by e-mail only if authorized by, and only in accordance with procedures specifically established by, GAO with regard to that protest. 4 C.F.R. § 21.4(b).
Only individuals who apply to GAO, and whose applications are approved by GAO, will be permitted access to protected information. Those individuals must be attorneys or consultants retained by attorneys; the attorneys may be outside counsel or in-house counsel. The applicants need to show that they are not involved in competitive decision making for any company that could gain a competitive advantage from access to protected information and that there will be no significant risk of inadvertent disclosure of such information. 4 C.F.R. § 21.4(c). GAO has issued a number of decisions that address matters related to the admission of applicants under a protective order. Individuals permitted access to protected information are not allowed to disclose that information to others. This means, for example, that a protester's attorney permitted access to protected information under a protective order is prohibited from revealing such information to the client. GAO may impose sanctions on any individual who violates the terms of a protective order, 4 C.F.R. § 21.4(d), or on individuals not admitted to the protective order who actively seek and obtain information that they know is covered by the protective order.
Because the information released under a protective order is not GAO's but, rather, the contracting agency’s or a private party’s, GAO relies on the parties to carefully review applications for access to material under a protective order (and to call to GAO's attention any possible violation of a protective order). If no party objects to an individual's application, GAO will generally admit the applicant under the protective order. It is important that any objections to an individual's application be promptly raised. By the end of the second day after receiving the application, the objecting party must advise GAO and the other parties that there is an objection to the applicant's admission. 4 C.F.R. § 21.4(c). The GAO attorney will generally permit the objecting party to submit the specific objection, in writing, the next day. GAO will promptly address any objections. Even after the period for filing an objection has passed, GAO may withhold its ruling on an application (or may revoke an admission) if information comes to light indicating that the applicant does not meet the criteria for admission.
Note that, under paragraph 1 of the protective order, a protective order issued for an initial protest is automatically extended by the terms of the order to cover all proceedings associated with the initial protest, including supplemental/amended protests, requests for reconsideration, and claims for costs. Under paragraph 7 of the protective order, GAO expressly authorizes a party admitted under a protective order to retain a single copy of a protected decision or letter issued by GAO, subject indefinitely to the terms of the order (except those terms regarding the return or destruction of protected material). Finally, in paragraph 7 of the application for both outside counsel and in-house counsel, GAO requires applicants to disclose those instances within the last 5 years when they have been denied admission to a protective order, or had admission revoked, or been found to have violated a protective order issued by GAO or by an administrative or judicial tribunal.
Further explanation of the protective order process at GAO may be found in The Guide To GAO Protective Orders, which may be viewed on GAO’s Internet web site (www.gao.gov) by selecting the Bid Protests line under the Legal Products heading. A sample protective order and sample applications for access to material under a protective order for outside counsel, in-house counsel, and consultants retained by counsel are reproduced in the appendixes to the Guide.
Any violation of the terms of a protective order may result in the imposition of such sanctions as GAO deems appropriate, including but not limited to referral of the violation to appropriate bar associations or other disciplinary bodies, and restricting the individual's practice before GAO. 4 C.F.R. § 21.4(d).
Within 30 days after an agency receives telephonic notice of a protest from GAO, the agency is required to provide GAO, the protester, and any intervenors a complete written report responding to the protest, including all relevant documents, or portions of documents, and an explanation of the agency's position. 4 C.F.R. § 21.3(c). The report generally includes a statement of the relevant facts (and an estimate of the contract value) signed by the contracting officer, a memorandum of law explaining the agency's position in terms of procurement law, and a list and copies of all relevant documents, or portions of documents, not previously furnished. 4 C.F.R. § 21.3(d).
GAO encourages agencies to voluntarily release to the parties documents that are relevant to the protest prior to the filing of the agency report. Documents provided to the parties before the agency report is filed, or documents that are otherwise made available to the parties by, for example, allowing them to review documents on site at the agency before the report is filed, need not be produced in the copy of the report provided to the parties. 4 C.F.R. § 21.3(c).
In addition, so that GAO may resolve any document disputes prior to the filing of the agency report, GAO requires that at least 5 days prior to the filing of the report, in cases in which the protester has requested in its protest, or shortly thereafter, specific documents material to the disposition of the protest, the agency prepare a list of those documents, or portions of documents, that it has previously released or intends to produce in its report, and of the documents it intends to withhold and the reasons for the proposed withholding. Id. The list must be provided to all parties and to GAO. Objections to the scope of the agency's proposed disclosure or nondisclosure of documents must be filed with GAO and all other parties within 2 days of receiving the list. Id.
The agency may omit documents, or portions of documents, from the copy of the report provided to the parties if the omitted information is protected and a party receiving the report is not represented by counsel admitted under a protective order. 4 C.F.R. § 21.3(e). Where the protester is proceeding without counsel admitted under a protective order and documents are withheld, it is important that the agency provide the protester with information sufficient to clearly inform the protester of the agency's position, so that the protester may comment intelligently on the report.
Occasionally, the agency may be aware of the existence of relevant documents that only the protester possesses. In appropriate cases, the agency may request that the protester produce those documents. 4 C.F.R. § 21.3(d). If GAO agrees that the documents are relevant, it may ask the protester to provide a copy of the documents to GAO and the other parties, subject to the terms of any protective order.
ADDITIONAL DOCUMENT REQUESTS
If a protester learns of the existence or relevance of additional documents that it believes GAO needs to consider in deciding the protest, it may request the production of those documents by filing a supplemental document request. 4 C.F.R. § 21.3(g). Typically, this arises where the protester, in reading the agency report, sees references to documents that the agency relies on in support of its position, but has not produced. A protester seeking the production of additional documents should submit a written request for those documents to GAO and the other parties within 2 days after the existence or relevance of the documents is known or should have been known, whichever is earlier. Id. The agency should respond to the request not later than 2 days after receiving the request by either producing the documents, or portions of documents, or explaining why the documents are not being produced. Id.
COMMENTS ON THE AGENCY REPORT
The protester and any intervenors may file written comments on the agency report. Comments generally are due at GAO within 10 days after receipt of the report. 4 C.F.R. § 21.3(i). Unless otherwise advised by the protester, GAO will assume that the protester received the report not later than the due date specified in the acknowledgment notice furnished by GAO. Id. A copy of the comments should be furnished to each of the other parties not later than the day after the comments are received at GAO.
Even if the contracting agency produces withheld documents at the direction of GAO after the report has been submitted, comments will be due within the original 10-day comment filing period, unless GAO extends this period. 4 C.F.R. § 21.3(h).
Failure of the protester to file comments within the 10-day period, within a longer period established by an extension granted by GAO, or within a shorter period established by GAO in accordance with 4 C.F.R. § 21.10(e), will result in dismissal of the protest. 4 C.F.R. § 21.3(i).