Bid Protests at the Government Accountability Office (GAO)

Congress established the Government Accountability Office in 1921 to act as a source of objective, non-partisan information on government operations, most importantly, the executive branch. This authority extends to the review of federal government contracts—whether federally appropriated funds are being properly spent and whether procurements are being conducted fairly so as to bring the most value to the government.

To provide oversight on government contracts, Congress enacted the Competition in Contracting Act (“CICA”), which solidified the GAO’s authority to review procurement decisions. The GAO’s Procurement Law Control Group consists of approximately 40 attorneys who review bid protests filed by disappointed offerors.

Below are some important guidelines for protesting at the GAO:

Who can protest? Only those who fit the definition of an “interested party” meaning a prospective or disappointed offeror with direct economic interest that would be affected by either the award of a contract or the failure to award a contract.

• This standard applies to both pre-award and post-award protests.
• Direct economic interest means an offeror must be either in line for an award or able to compete for award if the protest is sustained.
• Does not include: subcontractors, suppliers, trade associations.

What can be protested?

• Procurements for property or services by a federal agency with the exception of those agencies listed below. Note: the GAO does not review sales of government property unless the agency agrees (in writing) to have the sale reviewed.
• Not all procurements fall under the jurisdiction of the GAO. For instance, the GAO cannot review procurements from the following agencies:
  • United States Postal Service
  • Federal Aviation Administration
  • Federal Deposit Insurance Corporation
  • Centers for Medicare & Medicaid Services, for certain contract actions.
• The GAO also cannot review certain Indefinite Delivery, Indefinite Quantity (“IDIQ”) task orders. Specifically, for civilian departments (excluding NASA and Coast Guard), the GAO cannot review task order procurements for less than $10 million. For DoD, NASA, and Coast Guard procurements, the GAO cannot review task orders less than $25 million.

• The GAO only has jurisdiction over grants or cooperative agreements when the grant or cooperative agreement is the result of a competitive process.

When can an offeror lodge a protest with the GAO?

Timeliness questions are crucial to GAO bid protests and can often make or break a protest.

• Pre-award Protests: A pre-award protest must be filed either prior to bid opening or prior to the deadline for receipt of initial proposals.
  • Why is this deadline for pre-award protests so important? Too often disappointed offerors claim they did not know certain terms of a solicitation would be applied in a specific manner by the agency running the procurement. For instance, a disappointed offeror might:
    • Believe the adjectival ratings it received for its proposal do not match up with the evaluation criteria listed in the solicitation or request for proposal (“RFP”).
    • Believe the agency provided inconsistent answers to questions from potential offerors in the time leading up to a procurement deadline.
    • Know (or should know) of a potential Organizational Conflict of Interest (“OCI”) issue on behalf of one of its competitors.

In all of these instances, if a disappointed offeror raises these challenges in a post-award protest, they are likely to be found too late. The GAO has consistently held that these types of defects must be brought prior to the deadline for the receipt of initial proposals.

• There are two instances in which the deadline for pre-award protests is not “prior to the deadline for the receipt of proposals”:
  • When the solicitation does not provide a deadline for the receipt of proposals.
  • If the solicitation impropriety arises in an amendment or other communication from the contracting officer and further submissions by offerors are not anticipated.

In those instances, an offeror has 10 days from when they know of the solicitation impropriety to bring a pre-award protest.

• • Post-award Protests: Post-award protest deadlines are slightly more complicated than those for pre-award protests. A detailed chart breaking down the timeline for post-award protests at the GAO can be found on Ward & Berry’s general bid protest page, found here. Not only is there a timeline for when the GAO has jurisdiction over a protest, but there is also a deadline for when an Agency must enact a stay of contract performance under CICA. The protest timelines at the GAO are such:
  • Debriefings: In some instances, agencies are required to provide a disappointed offeror with a debriefing on why that offeror’s proposal was not chosen for award. Debriefings are required for FAR Part 15 procurements where a disappointed offeror requests (in writing) a debriefing within three calendar days exclusion from a competition or notice of award to another offeror. The required debriefing must identify what the agency determined to be the offeror’s significant weaknesses, and the evaluated cost and technical/past performance rating of the successful offeror versus the debriefed offeror. Additionally, the required debriefing must provide the overall ranking of offerors, a summary of the rationale for award, and a reasonable response to questions about the source selection process.
    • DoD, by statute, provides Enhanced Debriefings, which consist of an offeror being able to submit written debriefing questions within 2 business days of an initial debriefing. The debriefing period remains open until the agency provides written responses to these questions. This has the practical effect of allowing disappointed offerors more time to determine whether filing a bid protest makes sense. Once the agency responds, however, disappointed offerors will only have 5 calendar days to file a protest with the GAO if they are looking to invoke the CICA stay of performance. If the disappointed offeror is not interested in a CICA stay of performance, then the disappointed has 10 calendar days to file its protest with the GAO after the agency responds to its questions.
    • In other instances, an agency has discretion on whether to provide a disappointed offeror with a debriefing (for instance, procurements held under FAR Part 8).

Timeline for Protests After An Agency Protest:

Disappointed offerors can still lodge a GAO protest after an unsuccessful protest with the agency. These protests must be lodged within 10 days of the protester obtaining actual or constructive knowledge of initial adverse agency action on the protest, i.e., denial of the agency protest. Agency protests do trigger a CICA stay of performance, however, that stay ends once the agency takes adverse action against the disappointed offeror. The ability to seek a stay at the GAO is lost when an agency protest is filed, with the rare exception of an agency returning an adverse determination on a protest that is then subsequently protested to the GAO within 10 days of the event that triggered protest timelines (usually the notification of award to another offeror).

When to engage legal counsel?

If you are a serious government contractor, you should have protest counsel that you turn to throughout the procurement process. Good counsel will be honest and open with you about whether an issue warrants a protest. Ward & Berry has higher than industry average success in its GAO protests because we spend a good portion of our time talking clients out of bid protests when we foresee the chances for a successful protest as being lower than normal. Below are some junctures when you should consider reaching out to legal counsel:

• Pre-award: We cannot stress enough how underutilized the pre-award protest is. Often clients feel as if they will anger the potential government client by protesting pre-award. In our experience, most contracting professionals do not take pre-award protests personally and are committed to moving forward with a fair procurement. Issues which warrant a call to legal counsel are many and varied. Some examples include:
  • Something seems fishy about a procurement. If you feel a procurement is structured in a way that benefits a particular offeror that’s a great time to engage legal counsel for a pre-award protest counseling.Scenario: You know from industry research that an incumbent has had problems delivering on a predecessor contract for the procurement you are in, and yet the solicitation does not contain a past performance requirement. This should be a warning flag that the agency structured the procurement in a fashion as to avoid having to review the negative past performance of the incumbent. If you wait to protest this issue post-award, there’s a high likelihood that the GAO will find this to be a pre-award issue. Reach out to counsel!
  • The procurement has terms that are inconsistent or unclear. If you are having trouble understanding the weight the agency will put on different evaluation factors, it is worth a quick call to legal counsel to see if a pre-award protest is warranted. Scenario: The adjectival rating definitions for good and excellent show no real differentiation between those terms, and it is unclear whether the agency will be providing a review of each offeror’s approach to different questions within the solicitation. If you ask for clarification on these matters and the agency does not provide clarification, this is worth protesting as you will not be able to argue that the terms were unclear post-award. Reach out to counsel!
  • You know of a potential OCI Issue. An offeror that knows about a potential OCI issue must not sit on this knowledge and then hope to use it in a post-award protest. Note: This does not preclude you from making a post-award OCI protest if you learn of information after award has been made. Scenario: You know that your competitor hired away key government personnel and you are concerned that personnel will give key information to your competitor that sways the procurement in their favor. Reach out to counsel!
• Post-Award: We recommend reaching out to legal counsel after every unsuccessful procurement.
  • First, if you are contemplating a protest, early intervention will help your legal counsel to craft a better protest because they have more time to prepare the protest. Additionally, there might be strong strategic reasons to file a bid protest.
  • Second, early intervention with good and trusted legal counsel will help you avoid filing protests with little to no shot of winning. Often, clients are emotional when the agency didn’t see things the way they did. Emotional bid protests are often unsuccessful and result in good money going after bad. It is crucial that you understand that the GAO does not review whether the agency made the right decision. Instead, the GAO reviews whether the agency followed the rules and made reasonable choices based off of all of the necessary information.
  • Third, contacting counsel after an unsuccessful procurement is beneficial, even if your firm ultimately does not need to make a protest. We can provide insight into why your proposal did not win an award because we have gotten to look into the “black box” of the source selection committee for hundreds of procurements and we understand how they generally think and make procurement decisions. One to five hours of consultation will hopefully make your next proposal that much stronger.

Anatomy of a GAO Bid Protest.

• Initial filing: The initial protest filing must include all protest grounds that the protestor has reasonable knowledge of at the time of filing. The GAO does not allow piecemeal protests, e., raising issues in subsequent filings that should have been brought in an initial filing. That said, the GAO does allow for supplemental protests that stem from information learned during the issuance of the Agency Report.
• Intervention: If your protest would entail taking a contract award away from another offeror, you will likely have that offeror intervene in your protest. This means legal counsel for that offeror will have access to your protected information. They will, however, be under a strict order from the GAO to not provide any protected information to your competitor.
• Protective Order: As mentioned above, the GAO will put all parties under a protective order banning them from sharing the proprietary information of their competitors with their client.
• Requests for Dismissal: If the agency or intervenor feels that the protest grounds are not well enough established, they might file a request for dismissal of all or parts of a protest. Depending on the issue, a response to the request for dismissal might be required in a very quick manner.
• 5-Day Letter: The agency will provide your counsel with a letter stating what will be in the Agency Report five days prior to publishing that report. Often, the agency will be reticent to turnover many documents that might be necessary to the protest. The GAO often times will not push the agency to provide the requested documents, even over counsel’s objection. This is one of the reasons a disappointed offeror might prefer the Court of Federal Claims over the GAO.
• Agency Report: The agency must file the Agency Report within 30 days of the protest being filed. The Agency Report must include all documents relevant to the protest grounds. Legal Counsel for the agency will include a memorandum of law that describes why the government feels the protest is without merit.
• Supplemental Protest: The Agency Report sometimes reveals new protest grounds not previously known. If that is the case, a supplemental protest ground must be made within 10 days of receipt of the Agency Report. This supplemental protest will be attached to the protester’s Comments on the Agency Report.
• Comments on the Agency Report: Due within 10 days of receiving the Agency Report. This is essentially a response motion to the agency’s memorandum of law.
• Hearing (if ordered): The GAO rarely asks for a live hearing on the protest, but it is always a possibility.
• Decision: The GAO has 100 days from the date of initial filing to issue its decision on the protest. The GAO’s decision will be to either sustain or deny the protest. GAO decisions are not binding on the agency. However, in most instances the agency does act on the GAO’s decision because GAO will report to Congress when the agency acts against their decision. For example, in 2024, out of 1,800+ bid protests filed, only one decision was refused to be put into action by an agency. In all other instances the agency enacted the decision of the GAO.

Standard of Review.

Probably the most important thing to know about the GAO is their standard of review. The GAO will sustain protests where the agency’s procurement decision is unreasonable, undocumented, or contrary to the terms of the solicitation. But what do these terms mean in a legal context?

• Unreasonable– Agency decisions can be found unreasonable when:
  • The agency failed to look at something that was in a proposal (this often happens).
  • The agency looked at something in a proposal but made a decision that is irrational. For example, your proposal says you will have two PhD level scientists filling a seat, and the agency only gave you credit for one.
  • The agency conducted a pricing analysis that was faulty and thus unreasonable. For instance, the agency failed to recognize that an offeror put forth an unbalanced pricing offer.
  • Best value determinations where the agency took into account factors it should not have are also unreasonable.
  • Determining whether an agency’s actions were unreasonable is often a fact intensive exercise.
• Undocumented– The GAO will also sustain a protest that is undocumented, meaning the agency’s rationale is not captured. This protest ground is not seen as often, because not every decision of the agency needs to be completely documented. But there are situations where this arises.
  • For example, the agency might assess one offeror’s management approach as better than another offeror’s management approach. If the agency does not document its assessment of one offeror, then that determination that offeror A is better than offeror B cannot be reviewed to determine if its reasonable.
• Contrary to Law and Regulation (To Include the Terms of the Solicitation– The agency’s procurement decisions must be in line with all applicable law and regulation (the FAR, DFARS, CICA, etc.) and in line with the terms of the solicitation. These situations occur frequently and are the cause of the vast majority of corrective actions taken by an agency.
  • For instance, if the Agency states that it will look at past performance, and then it fails to markdown a competitor’s proposal where negative past performance occurred, then the Agency is failing to comply with the terms of the solicitation.
  • Another example is that an agency might incorrectly read a statute and exclude an offeror from a competition. These decisions can be challenged.

Important Things to Keep in Mind About GAO Protests.

• Most cost-effective protest forum. While the Agency Report is not a robust as the Administrative Record a protester would receive in the Court of Federal Claims, sometimes it does not need to be to provide for effective review of the agency’s procurement decisions. Talk to legal counsel to determine the best forum.
• You can always withdraw a protest. Often, clients are unsure of their chances for success in a protest but want to test the waters to see what’s in the Agency Report. If the Agency Report then indicates the agency’s decision is more than likely defensible, a protester can always withdraw their protest without any harm coming to them, thus saving the costs of having to further litigate a protest. Ward & Berry is extremely honest with our clients about their likelihood for success once we get the Agency Report back.
• Removal to the Court of Federal Claims. We have seen agencies increasingly rely on massive IDIQ contract vehicles with sometimes over 100+ offerors. Keep in mind, if even one of these offerors decides to file their bid protest with the Court of Federal Claims, the GAO will lose its jurisdiction over any protests and you will have to move your bid protest over to the Court of Federal Claims to have any shot at corrective action.
• Court of Federal Claims Offers Second Bite at Protest Apple. If you are unsuccessful in your GAO protest and feel as if the GAO did not give full credence to your protest, you always have the option of filing your bid protest with the Court of Federal Claims.