WHO MAY PROTEST
By law, a GAO protest must be filed by an "interested party," which means an actual or prospective bidder or offeror with a direct economic interest in the procurement. 4 C.F.R. § 21.0(a). In challenges of the evaluation of proposals and the award of contracts, this generally means an offeror that would potentially be in line for award if the protest were sustained.
Although many parties retain an attorney in order to benefit from the attorney's familiarity with GAO's bid protest process and with procurement statutes and regulations, an attorney is not required for purposes of filing a protest. However, where the record includes another company's proprietary information or the agency's source-selection-sensitive information, only attorneys will be allowed to see that information (and then only if the attorneys are admitted under a protective order, as discussed below).
WHAT TO PROTEST
Although most protests challenge the acceptance or rejection of a bid or proposal and the award or proposed award of a contract, GAO considers protests of defective solicitations (e.g., allegedly restrictive specifications, omission of a required provision, and ambiguous or indefinite evaluation factors), as well as certain other procurement actions (e.g., the cancellation of a solicitation). The termination of a contract may be protested if the protest alleges that the termination was based on improprieties in the award of the contract. 4 C.F.R. § 21.1(a). Where the agency involved has agreed in writing, GAO will consider protests concerning (1) awards of subcontracts by or for a federal agency, (2) sales by a federal agency, and (3) procurement actions by government entities that do not fall within the strict definition of federal agencies in 4 C.F.R. § 21.0(c). 4 C.F.R. § 21.13(a).
There are some matters that cannot be protested to GAO. The most common grounds for dismissal of a protest in whole or in part are set forth in 4 C.F.R. § 21.5.
PREPARATION OF A PROTEST
There is no prescribed form for filing a protest, except that the protest must be in writing. 4 C.F.R. § 21.1(b). Protests may be filed by hand delivery, mail, commercial carrier, facsimile transmission, or e?mail. 4 C.F.R. § 21.0(g). For protesters who decide to file by e?mail, we point out that GAO uses Microsoft Office (including Microsoft Word) as its office application software. Protests of different procurements must be separately filed. 4 C.F.R. § 21.1(f).
GAO does not require formal briefs or other technical forms of pleadings. However, at a minimum, a protest must:
In addition, a protest may include a request for a protective order, specific documents relevant to the protest, and/or a hearing. 4 C.F.R. § 21.1(d). In this regard, protesters must explain the relevance of requested documents to their protest grounds and the reason a hearing is necessary to resolve the protest. Id.
The protest document must be clearly labeled if it contains information that the protester believes is proprietary, confidential, or otherwise not releasable to the public. In those cases, within 1 day after the filing of the protest with GAO, the protester must provide to GAO and the contracting agency a redacted version of the protest that omits such information. 4 C.F.R. § 21.1(g).
A party may request that GAO decide a protest using an express option schedule or other flexible alternative procedures, including establishing an accelerated schedule, issuing a summary decision, or using ADR procedures. 4 C.F.R. § 21.10(a), (e). GAO also may invoke alternative procedures, including ADR, on its own initiative.
WHEN TO PROTEST
The regulations set forth the timeliness requirements for filing protests at GAO. 4 C.F.R. § 21.2. Because bid protests may delay the procurement of needed goods and services, GAO, except under limited circumstances, strictly enforces these timeliness requirements.
Protests alleging improprieties in a solicitation must be filed before bid opening or the time set for receipt of initial proposals if the improprieties were apparent prior to that time. 4 C.F.R. § 21.2(a)(1). A solicitation defect that was not apparent before that time must be protested not later than 10 days after the defect became apparent. In negotiated procurements, if an alleged impropriety did not exist in the initial solicitation but was later incorporated into the solicitation by an amendment, a protest based on that impropriety must be filed before the next closing time established for submitting proposals. Id.
In all other cases, protests must be filed not later than 10 days after the protester knew or should have known the basis of protest (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is "requested and, when requested, is required" (that is, a debriefing that is required by law). In these cases, with respect to any protest basis that was known or should have been known before the statutorily required debriefing, the protester should not file its initial protest before the debriefing date offered to the protester, but must file its initial protest not later than 10 days after the date on which the debriefing was held. 4 C.F.R. § 21.2(a)(2).
The purpose of the exception to the timeliness rules for negotiated procurements where debriefings are required by law is to encourage vendors to seek, and contracting agencies to give, early and meaningful debriefings prior to the vendor’s deciding whether or not to file a protest. A protester therefore will always have up to 10 days after the required debriefing to file its initial protest.
Special timeliness rules govern protests initially filed with the contracting agency. In those cases, the protest to GAO must be filed not later than 10 days after the protester learned of "initial adverse agency action." 4 C.F.R. § 21.2(a)(3). Deciding when adverse agency action occurs is straightforward when the protester receives oral or written notice that the agency is denying the agency-level protest. Protesters should keep in mind, however, that GAO views as adverse agency action any action that makes clear that the agency is denying the agency-level protest. Examples of adverse agency action include the agency's proceeding with bid opening or the receipt of proposals, the rejection of a bid or proposal, or the award of a contract despite the agency-level protest. Firms that have filed an agency-level protest and are considering filing a subsequent protest with GAO should be alert to any possible agency action that could be viewed as indicating that the agency is denying the agency-level protest.
Agency-level protests must be filed in accordance with GAO's timeliness rules at 4 C.F.R. § 21.2(a)(1) and (a)(2), unless the agency imposes a more stringent time for filing, in which case the agency's time for filing will control. Thus, even if a firm files a protest with GAO within 10 days of initial adverse agency action, GAO will consider the protest untimely if the agency-level protest was not timely filed under GAO's timeliness rules or under an agency's rules if those rules are stricter. 4 C.F.R. § 21.2(a)(3). For example, if a firm waits until after bid opening to file an agency-level protest of an apparent solicitation impropriety, GAO will not consider a protest of that impropriety even if it is filed within 10 days of the firm's learning that the agency has denied the agency-level protest, since the agency-level protest was not filed prior to bid opening.
GAO may consider an untimely protest where exceptional circumstances beyond the protester's control caused the delay in filing the protest, or where the protest presents novel or significant issues of interest to the procurement community. 4 C.F.R. § 21.2(c). Protesters should be aware, however, that GAO will invoke these exceptions sparingly.
Finally, GAO recognizes that the North American Free Trade Agreement (NAFTA) contains a 10-working-day timeliness requirement, which is inconsistent with GAO's timeliness rules. However, because of the flexibility of GAO's timeliness rules, GAO will afford a NAFTA protester all treaty rights for purposes of the timely filing of a protest.
WHERE TO SEND A PROTEST
Protests must be addressed to the General Counsel, Government Accountability Office, 441 G St., N.W., Washington, DC 20548, Attention: Procurement Law Control Group. 4 C.F.R. § 21.1(b). GAO's office hours are from 8:30 a.m. to 5:30 p.m., eastern time, Monday through Friday.
Protests may be filed by hand delivery, mail, commercial carrier, fax, or e-mail. 4 C.F.R. § 21.0(g). Protests filed by hand delivery or commercial carrier must be delivered to the window located in the G Street lobby in GAO's main building at the above-referenced address.
Protesters filing their protests by fax should verify GAO's fax number prior to transmission. GAO's current official bid protest fax number is (202) 512-9749. Fax users should take into account the risk that GAO's receiving fax machine might be busy, particularly near the end of a business day. GAO will time/date stamp a fax transmission as of the time the last page is received, which may affect the timeliness of the entire submission. Additional recorded information concerning the filing of protests at GAO may be obtained by calling GAO's Procurement Law Control Group at (202) 512-5282.
A copy of the protest, including all attachments, must be filed with the individual or location identified for that purpose in a solicitation, or with the contracting officer, within 1 day after the protest is filed with GAO. 4 C.F.R. § 21.1(e).