When a contractor believes an agency violated procurement law or regulation in a solicitation or award, it can file a bid protest. Protests are a normal part of the federal system, designed to keep competitions fair and agencies accountable. They are also legal proceedings with strict rules and deadlines, so this article provides general information only. If you are considering a protest, talk to a government contracts attorney promptly.
Three main forums
Protests of federal procurements are generally heard in one of three places:
- The agency itself. Agency-level protests are filed with the contracting officer or another designated official. They can be faster and less formal, and the procedures are described in the FAR.
- The Government Accountability Office (GAO). GAO decides protests under the Competition in Contracting Act. Its process is well established, and GAO generally issues decisions within 100 days of filing.
- The U.S. Court of Federal Claims. The court can hear protests and has broader authority in some respects, but litigation in court typically involves more formality and cost.
Each forum has its own rules about what can be protested, who has standing, timelines and remedies.
Why timing is critical
Protest deadlines are short, often measured in days. In general terms, protests of apparent problems in a solicitation must typically be filed before the time set for receipt of proposals. Protests based on other issues are typically due within a short period after the basis for protest is known or should have been known. Debriefings can affect these timelines.
In GAO protests, filing within certain windows after award or after a required debriefing can trigger an automatic stay that generally prevents the agency from proceeding with performance while the protest is pending, subject to exceptions. Missing those windows can mean losing the stay or the right to protest at all. That is why consulting counsel quickly matters.
Common protest grounds
Protests often allege issues such as:
- Evaluation that departed from the solicitation’s stated criteria
- Unequal treatment of offerors, including in discussions
- Unreasonable past performance or price evaluations
- Solicitation terms that unduly restrict competition
- Organizational conflicts of interest
Disagreement with an evaluator’s judgment is not enough on its own. Protest forums generally give agencies deference on reasonable evaluation judgments and look for errors in following the law, the regulations or the solicitation.
Deciding whether to protest
A protest is a business decision as well as a legal one. Consider the strength of the grounds, the cost, the effect on your relationship with the agency and the remedy you realistically seek. Remedies may include reevaluation, a new award decision, amendment of the solicitation or, in some cases, recovery of certain costs. A protest does not usually result in a direct award to the protester.
Many protests are resolved through corrective action, where the agency voluntarily agrees to fix an issue. For the most current procedures, see GAO’s bid protest resources at gao.gov, and rely on qualified counsel for decisions about your situation.