Today we will be describing the process of filing your protest with Government Accountability Office (GAO). Your GAO protest must now be filed electronically at a cost of $350. You may want to bookmark this page so that you can come back to it later. Please note that it is not our intent to walk you through each step of filing a protest. It is merely our goal to educate you on the process. And provide you with the regulations governing this process.
Now that we have our disclaimer stated we can begin our discussion. First, we will start with the regulations governing GAO protests.
Where will I find the regulations governing GAO protests? The first place that anyone would look would be the Federal Acquisition Regulation (FAR) Although the FAR does contain the federal acquisition process it is not the best place to go. The Code of Federal Regulations otherwise known as the CFR will contain the information you are looking for. The CFR incorporates the general rules and regulations sometimes referred to as administrative law. In other words, the CFR provides the laws and rules whereas the FAR provides the acquisition process. I am not sure if I can explain it any better than that.
Please refer to Title 4 CFR Part 21 for the procedures that you will need to follow. If you discover a conflict between the Code of Federal Regulation (CFR) and the Federal Acquisition Regulation (FAR), the CFR wins. Furthermore, you will not believe the number of contracting officers that do not realize that the CFR takes precedence over the FAR. This has lead to many discussions in the past. In fact, don’t be afraid to educate others on this as well. Next, we will talk about where to find the GAO contact information.
In summary, the Code of Federal Regulations, specifically 4CFR21 will provide you the information on filing your protest.
To Whom, and Where Do I Send the GAO Protest to?
GAO has changed its procedures on filing a protest. Now protestors use GAO’s electronic protest system. The Code of Federal Regulations contains the updated procedures. However, the Federal Acquisition Regulation still refers to outdated procedures. Make sure that you follow the procedures in the CFR!!!!!!
I am including the link to the eCFR for your reference. It might be a good idea to bookmark this page. The eCFR is the electronic CFR that is kept up to date. When searching for the CFR make sure that users only use this site. There are other sites out there but they contain outdated information.
Next, we will talk about GAO’s Electronic Protest Docketing System (EPDS).
Electronic Protest Docketing System (EPDS)
GAO has moved to an electronic protest system. As a result, you must now use this system when submitting bid protests. There is a $350.00 filing fee when submitting your protest. The new system called GAO’s Electronic Protest Docketing System (EPDS). In addition, the website has guidance on how to use the system. Also, you cannot submit classified information through their electronic system. Additional guidance is available on their website.
Now you may be asking about the filing fee. According to the website, the filing fee is to maintain and upgrade the Electronic Protest Docketing System.
The website has a lot of information along with videos walking you through the various steps of filing your protest. In addition, you can review the docket, and search for decisions on past protests. In Fact, the Frequently Asked Questions (FAQ) seems to be pretty detailed and should answer most of your questions.
Now that you have submitted your protest, let’s find out how GAO will notify the Agency.
How Will GAO Notify the Procuring Activity?
GAO will notify the procuring activity through a written notice. If the protest is on an awarded contract then the contracting agency must notify the contractor. If the contract award has not been made, then the agency will notify all parties who have a reasonable prospect of receiving the award. All interested parties receive a notification.
The contracting agency must provide copies of the protest to all parties. But what does the written notice contain?
What Does the Written Notice Contain?
The written notice will instruct the recipient to communicate directly with the Government Accountability Office. In addition, the recipient will need to provide copies of any communication with the procuring activity and any other party. Also, the protester does have the option of requesting a protective order. A protective order protects sensitive information. If you request a protective order you will need to provide to the contracting officer a redacted version of the protest. The contracting officer will need this redacted protest to send to the other interested parties.
What Type of Information can Be Protected?
So what information can I protect? Proprietary or confidential information, sensitive information, or other information, which the release could result in a competitive advantage to one or more businesses.
What Will the Contracting Activity do?
Meanwhile, the contracting officer will compile the necessary information for the report. As soon as the contracting officer receives notification from GAO of the protest they will start this process. This report is due to the GAO within 30 days.
GAO can notify the procuring agency by telephone. There are two options that GAO has to process the protest. The first is the Express Option and the second is the standard option. If GAO uses the express option then the procuring activity only has 20 days to complete the report and send it.
Unless GAO has advised the procuring agency that the protest has been dismissed they must continue working on the report. However, the procuring agency does have the option of requesting an extension. If GAO grants the extension the report is not due until the end of the extension. In addition, the contracting activity must update the protest file with the new date granted by GAO. Also, the extension request and result will need updating in the file.
Next, we will go over the protest file.
Who Has Access to the Protest File?
The prospective offeror can request reasonable access to the protest file. The procuring activity is responsible for providing this access. However, the prospective offeror may not receive access if GAO dismisses the protest prior to the documents being submitted to GAO.
Now not everything can be made available. We talked before about protective orders. Who else can have access to the protest file? Well, any actual or prospective offerors can obtain access to the file. Remember it will only be the redacted portion that is made available to them. When is the protest file made available? Not until after the procuring activity has submitted its report to the GAO.
What Does the Protest File Contain?
The protest file will contain the following: an index; the protest; the offer submitted by the protester; the offer being considered for award or being protested; all relevant evaluation documents; the solicitation including the specifications or portions relevant to the protest; and any other documents that the Procuring Activity has deemed relevant to the protest. This includes the documents specifically requested by the protester.
Prior to Procuring Activity Report Being File with GAO
The procuring activity must provide to all parties and the GAO a listing of documents or portions of the documents that the procuring activity has released to the protester. This must happen a minimum of five days prior to filing the report with GAO. In addition, the procuring activity must include a listing of documents that it intends to produce in its report. Also, they must provide a list of documents that it intends to withhold from the protester. The procuring activity must provide a reason as to why these documents are being withheld. The protester has only 2 days after receipt of the listing to file an objection to the scope of nondisclosure or disclosure with GAO and the other parties.
Protests are taken seriously at every level. In addition, protests add work on the procuring activity, especially the contracting officers. Next, we will look at the procuring activity’s report.
Report to GAO
The report that the procuring activity sends to GAO must include the following:
- The Protest;
- The offer submitted by the protester;
- The offer is considered for the award or being protested;
- All relevant evaluation documents;
- The solicitation, including the specifications or portions relevant to the protest;
- The abstract of offers or relevant portions; and
- Any other documents that the procuring activity determines are relevant to the protest, including documents specifically requested by the protester;
- The contracting officer’s signed statement of relevant facts, including the best estimate of the contract value, and a memorandum of law.
The procuring activity report is very detailed as shown by the above documents. But we have not said what the contracting officer includes in his statement. Next, we will go through the contracting officer’s statement.
Contracting Officer’s Statement
The contracting officer’s statement must set forth the findings, actions and recommendations, and any additional evidence or information not provided in the protest file that may be necessary to determine the merits of the protest. In addition, it will include a list of parties being provided the documents.
When Will the Protesters and intervenors Receive the Documents?
That is a great question. It happens at the same time that the procuring activity submits its report to the GAO. The Procuring Activity will then send the relevant documents to the protester. However, the procuring activity will withhold documents protected by a protective order. The releasing of information must be in accordance with the terms of the protective order. And any other documents that the procuring activity wishes to withhold.
What Documents Can the Procuring Activity Withhold?
The procuring activity may withhold from the report any documents previously furnished to or prepared by a party. They will also withhold classified information and any information that would give the party a competitive advantaged.
About Protective Orders
We talked about Protective Orders earlier in this episode. But we did not go into detail. Let’s take a moment and go over the protective orders. GAO may issue protective orders which will establish the terms, conditions and restrictions for the provision of any document to an interested party. These protective orders prohibit or restrict the disclosure of sensitive information, trade secrets or other proprietary or confidential research, development or commercial information that is contained within any documents. However, protective orders do not authorize the withholding of any documents or information from the United States Congress or an executive agency.
Requests for Protective Orders
Any party seeking issuance of a protective order must file its request with GAO as soon as practicable. Be sure to provide copies simultaneously to all parties.
Any party may within 2 days after receipt of a copy of a protective order request, request that certain documents excluded from the coverage of the protective order. Or that parties or individuals included in or excluded from this protective order. Again, copies of the request must provide to all parties.
What Happens if Additional Documents Become evident after the Protective Order Has Been Issued?
GAO can authorize additional documents to be added to the protective order.
GAO may impose appropriate sanctions for any violation of the terms of the protective order. Improper disclosure of this protected information will entitle the aggrieved party to all appropriate remedies under law or equity. Also, GAO may take appropriate action against a procuring activity that fails to provide documents designated in a protective order.
As you can tell the government takes any disclosure of information to contain the protective order seriously. Next, we will talk about commenting on the procuring activity report.
Can I Comment on the Procuring Activity Report?
Now the protester and other interested parties need to provide a copy of any comments on the procuring activity report directly to GAO within 10 days, or 5 days under the express option. These 10 days or 5 days start upon receipt of the report. You will need to provide a copy of your comments to GAO, the contracting officers, and all interested parties. Now a hearing may also be held and if this is the case then the comments are due within 5 days after the hearing.
Agencies must provide GAO with the name, title, and telephone number of one or more officials (in both the field and headquarters offices) whom GAO may contact. These individuals need to be knowledgeable about the subject matter regarding the protest. Each procuring activity must be responsible for promptly advising the GAO of any change in the designated officials.
What Happens When GAO Receives a Protest Prior to Contract Award?
Once the procuring activity receives notice from GAO of a protest, they cannot award the contract. Unless through procuring activity procedures the head of the contracting activity, on a noon delegable basis and upon a written finding that there are urgent and compelling circumstances which significantly affect the interest of the United States that will not permit waiting until GAO makes its decision. In addition, the award is likely to occur within 3o days of the written finding. Remember that both conditions here need to be met.
The procuring activity must not award the contract until they notify GAO.
Contracting Officer must notify the offerors who might be eligible for the awarded contract of the protest on contracts that the procuring activity is waiting on the outcome of the protest with GAO. In addition, the contracting officer should request prior to the expiration time for acceptance of their offer to extend the time for acceptance. The purpose of this is to avoid the need for a re-solicitation. Previously, we told you that when you submit your offer you need to have an expiration date as to how long your offer is good for. The contracting officer will be asking you to extend the date that your bid is good for.
What Happens if GAO Receives a Protest After Award?
When a procuring activity receives notification from GAO within 10 days after the award of a contract or within 5 days after a debriefing date offered to the protester, the contracting officer must immediately suspend performance or terminate the awarded contract. Again, there are exceptions. If the head of the contracting activity makes a written determination that the performance on this contract is in the best interests of the United States and authorizes the contractor to perform the contract. Or the head of the contracting activity determines that there are urgent and compelling circumstances that significantly affect the interests of the United States and do not permit the waiting on GAO protest decision.
Now the procuring activity cannot authorize contract performance until they notify GAO of its finding. However, when the procuring activity decided to suspend performance or terminate the awarded contract the contracting officer must attempt to negotiate a mutual agreement on a no-cost basis.
What Happens if the Procuring Activity Receives Notice of a Filed Protest With GAO after the 10 days after award or 5 days after the scheduled debriefing?
The contracting officer does not have to suspend the contract performance or terminate the contract. However, if the contracting officer can suspend or terminate the contract based on an invalidated contract and a delay in receiving the supplies or services is not harmful to the Government’s interest he or she may suspend or terminate the contract.
Will the Government Notify the Protester if They Elect To Continue the Contract?
Once a decision to proceed with the contract award or continue contract performance has been decided the contracting officer must include the written findings or other required documentation in the contract file. In addition, the contracting officer must provide written notice of the decision to the protests and other interested parties.
What About Hearings?
Now GAO may hold a hearing at the request of the procuring activity, a protester or other interested party who has responded to the notice. A recording or transcription of the hearing will normally be made, and copies can be obtained from GAO. All parties may file comments on the hearing and the agency report within 5 days of the hearing.
When Will GAO Make a Recommendation?
GAO will make a recommendation on the protest within 100 days from the date of filing the protest with GAO or within 65 days under the express option. GAO can also issue a recommendation. Add new grounds to your protest by amending it. As long as it is within the original timeframe. Now if GAO cannot resolve the amended protest within the initial time limit, they may resolve the amended protest through an express option.
What Happens if the Procuring Activity Does Not Fully Implement the GAO Recommendation?
If the procuring activity does not fully implement the recommendations of GAO with respect to a solicitation for a contract or an award or a proposed award contract within 60 days after receiving GAO recommendations, the head of the contracting activity responsible for the contract must report the failure to GAO no later than 5 days after the expiration of the 60 day period. The report must explain the reasons why the GAO’s recommendation, exclusive of costs, has not been followed by the agency.
Normally, the contracting activity will follow GAO guidelines. As you can imagine most contracting activities prefer to resolve the protest at their level. It is much faster to resolve the protest issues than waiting 100 days for GAO to decide. Even though the express option a procuring activity protest can take place at a minimum of 15 days faster.
In Summary On GAO Protest
In conclusion, a GAO protest will take approximately 65 to 100 days before you obtain any results. It is much faster to file a protest through the procuring activity. In addition, this allows you the opportunity to file with GAO also.
Next week we will continue our discussion on the protest by discussing the U.S. Federal Courts protest option. Until next time, be safe.