Bid Protests at GAO: A Descriptive Guide
At the request of a party, or on its own initiative, GAO may conduct a hearing in person or by telephone where it concludes that the protest cannot be resolved on the written record alone. 4 C.F.R. § 21.7(a), (c).
Because hearings increase the costs and burdens of protests, GAO holds hearings only when necessary. A request for a hearing should explain why a hearing is necessary to resolve the protest, and point out, for example, factual and legal questions that GAO must consider in order to decide the protest. 4 C.F.R. §§ 21.1(d)(3), 21.7(a). GAO has issued a number of decisions that discuss reasons for holding hearings. While the regulations do not establish a deadline for requesting a hearing, such a request should be submitted as early as possible in the protest process in order to avoid unnecessary delays and disruptions. Parties should also be aware that GAO may determine shortly after a protest is filed whether the case is one in which a hearing appears likely to be appropriate. On the other hand, the appropriateness of a hearing often is not clear until after the contracting agency has filed its report and, in many cases, is not clear until after the protester has submitted its comments on the report. GAO may decide at these later times that a hearing is necessary to resolve the protest.
In cases where GAO decides to hold a hearing, it will generally conduct a pre-hearing conference with all parties. 4 C.F.R. § 21.7(b). The purpose of that conference is to review the scope of the hearing, identify the appropriate witnesses and their availability, establish the date and location of the hearing, and discuss other logistical matters. In cases where GAO determines that only some of the protest issues require a hearing, it will generally limit the hearing to those issues. The GAO attorney handling the protest will conduct both the pre-hearing conference and the hearing. The format of hearings varies from formal (direct- and cross-examination of witnesses conducted by counsel for the parties) to informal (a discussion of the issues by counsel and others). For this reason, the pre-hearing conference is usually the best opportunity to clarify how the GAO attorney expects to conduct the hearing, as well as to raise any other questions about the hearing.
A GAO hearing is, in principle, open to the public. In practice, however, protest hearings often involve protected information. As a result, most hearings are closed, except to agency personnel and those individuals admitted under the protective order. 4 C.F.R. § 21.7(d).
At least 1 day prior to the hearing, parties must advise GAO of those individuals expected to attend the hearing so that these individuals may gain access to the GAO building where the hearing room is located.
The GAO hearing room is equipped with video cameras and microphones, which automatically record the proceedings. That system produces a video or electronic transcript, a copy of which is provided to the parties at no charge at the conclusion of the hearing. In addition, parties may wish to have a court reporter attend the hearing to prepare a written transcript. A request to that effect should be presented before the day of the hearing to the GAO attorney handling the protest. Such a request will usually be granted as long as all parties have access to a written transcript. Where a hearing is held by electronic means, such as by telephone or video teleconferencing, the parties and GAO will determine beforehand the manner in which the hearing will be recorded.
If a hearing is held, all parties, including the agency, will be permitted to file written comments on the hearing. 4 C.F.R. § 21.7(g). Those comments are due 5 days after the hearing ends, unless GAO sets a different date. Id. Hearings generally are held after receipt of comments on the agency report.