In continuing last week’s post on the timeliness requirements of filing bid protests before the GAO, today we’ll cover the difference between the deadline for filing a bid protest and the deadline for obtaining an automatic stay of a contract to a competitor.
As explained in Ameron, Inc. v. U.S. Army Corp. of Engineers, prior to the creation of the Competition in Contracting Act’s automatic stay, protests were rendered moot because agencies would intentionally rush contract performance to effectively avoid meaningful administrative review by the GAO.
Deadline for Filing a Protest v. Deadline for Obtaining a CICA Stay
Under the Competition in Contracting Act of 1984 (“CICA”), 31 U.S.C. § 3551, et seq., a properly filed protest can trigger an automatic stay of contract award or performance. The CICA stay is what makes GAO protests meaningful and is the main benefit of filing a protest before the GAO.
Bid protests made on any basis other than an impropriety in the solicitation (i.e., a protest challenging exclusion from the competitive range, the rejection of a proposal as unacceptable, or an award to a competitor) must be filed no later than 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(a).
A Timely Bid Protest Doesn’t Automatically Trigger a Stay
It is critical to remember that filing a timely bid protest at the GAO does not necessarily trigger the CICA stay. To trigger an automatic stay, the contracting officer must receive notice of the protest from the GAO on the later of:
- the date that is 10 days after the date of the contract award;
- the date that is 5 days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required. 31 U.S.C. § 3553(d)(4).
Frequently, it will take the GAO a day to process a protest and inform the relevant government agency that a protest has been filed. If a bid protest is filed the fifth day after debriefing or the tenth day after award, and the agency is not informed of the protest until the next day, the protest will move forward but the agency need not (and likely will not) stay contract performance.
If the GAO sustains a protest but the agency did not stay contract performance, the GAO will frequently decline to recommend termination of a contract and a reevaluation of proposals. Rather the GAO will recommend that the agency not exercise any options and then conduct a new competition when the wrongfully awarded contract expires. To avoid such a joyless victory, protests should be filed as early as possible, and, if possible, no later than the day before the deadline for the automatic CICA stay – the fourth day after debriefing or the ninth day after contract award.
Although the CICA stay is technically triggered only when the contracting officer receives notice of the protest from the GAO itself, as a practical matter it is always wise to copy the contracting officer when a protest is filed, and it never hurts to follow up with the contracting officer to make sure that the protest was received.
In next week’s final post we’ll examine the distinction timeliness requirement in filing GAO protests that include “comments” and “supplemental protests.”
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
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