22 CFR 201.22; 4 C.F.R. §21.0 et. Seq.
- Bidding Procedures:
The federal government usually elicits private contractors to construct or complete tasks, and it is done through a bidding process. These bids can be protested by other bidders or interested parties, and the bid protests are adjudicated by the United States Government Accountability Office, or the GAO. These protests are done outside of federal court, and do not have to be done with an attorney. However, an attorney will be able to help you procedurally and strategically when protesting bids, and their legal counsel should be sought out whenever practicable.
Protests cannot be filed against nonfederal government agencies – so state, local or foreign governments are exempt. Other federal agencies are also exempted, like the U.S. Postal Service. Like many civil actions, the timeline and rules of procedure are critical in filing a bidding protest. Usually, a protest that challenges the award of a contract must be filed with the GAO within 10 calendar days of the award, or when the protestor knows or should have known about the reason for the protest. Parties who have won the contract that is now being protested have the right to enter the case as an intervenor; however, they are not required to do so as the federal agency is the entity that is required to respond and investigate the claims.
The process begins by the actual filing of a protest, and unless it is dismissed due to procedural or substantial defects, the contracting agency must file a report responding to the protest with the GAO. The GAO, as the middleman, can schedule informal conferences to resolve procedural issues and gather more information in order to ultimately resolve and dispose of the protest. Sometimes, the GAO determines that a full hearing is required to settle the case, which can include witness testimony, documentary evidence, and procedural rulings.
At the end of the process, the GAO will issue a decision either sustaining the protest (finding that the agency is in violation of a procurement statute), and can issue appropriate corrective or rehabilitative action. Or, the GAO can deny the matter and dismiss the protest. The decision either way will be issued no later than 100 days from the date the original protest was filed. The GAO will consider a variety of factors to sustain a protest, including defective solicitations, or the cancellation of a solicitation. When dismissing a case, the GAO will use the grounds found in 4 C.F.R. § 21.5, and include the administration of a contract, untimely protests, or procurements by non-federal agencies.
Once the GAO receives the protest, they will send the party protesting official notice of their receipt, and will include the expected date upon which a decision will be issued. The format and procedure for filing a protest is detailed, and a competent licensed attorney will be able to provide guidance or perform the steps of a protest on your behalf. The GAO will also contact the contracting agency of the receipt of a protest, usually via phone call, which triggers the automatic stay or performance of the contract, and puts the agency on notice to respond to the protest.
Regardless of whether or not an attorney is hired, there should never be any ex parte communications between the protestor and the GAO attorney. An ex parte communication is one that occurs between the party and the arbiter (the GAO attorney) without the presence of the opposing party, concerning the substance of the case. Hiring an attorney to assist with the bidding protest process can provide peace of mind and could be worth the investment.