Bid Protests at GAO: A Descriptive Guide
GAO will either dismiss, deny, or sustain a protest. GAO generally sustains protests where it determines that the contracting agency violated procurement statutes or regulations, unless it concludes that the violation did not prejudice the protester. Where a protest is sustained, GAO will recommend appropriate corrective action. In fashioning its recommendation, GAO will take into consideration the circumstances of the procurement, such as the agency's stated need for the goods or services at issue, the extent to which performance has been completed (in post-award protests where performance has not been stayed), and similar factors. In appropriate circumstances, GAO will recommend that the agency terminate an improper award or, where this is not feasible, that the agency not exercise any renewal options in the improperly awarded contract. 4 C.F.R. § 21.8(a), (b).
If the protest is sustained, GAO generally will recommend that the protester be reimbursed the costs of filing and pursuing the protest, including attorneys' fees and consultant and expert witness fees. Occasionally, where there is no other relief available, GAO will recommend that the protester also be reimbursed the costs of preparing its bid or proposal. 4 C.F.R. § 21.8(d).
Where GAO has recommended reimbursement of costs, the protester must submit a detailed claim for costs, certifying the time expended and costs incurred in pursuing the protest, directly to the contracting agency within 60 days after receipt of GAO's recommendation that the agency pay these costs. 4 C.F.R. § 21.8(f)(1). A claim must be supported by adequate documentation. GAO expects the protester and the agency to determine the exact amount to be paid. If the protester and agency cannot agree, GAO may, at the protester’s request, decide the matter. 4 C.F.R. § 21.8(f)(2).
Protesters should keep in mind that, except in very limited circumstances, the costs for attorneys' fees may not exceed $150 per hour. GAO never recommends that agencies pay lost profits or other common-law damages.
When GAO recommends corrective action, the Competition in Contracting Act of 1984 requires the agencies affected to report to the Comptroller General whenever they have not fully implemented the recommendation within 60 days. The Comptroller General, in turn, reports to the Congress each instance where recommendations were not fully implemented.