By: Matt Carter
Unsuccessful offerors are sometimes unclear as to their ability to challenge an agency’s award determination. Although many entities are familiar with the term “bid protest,” such entities are often unaware where to file a protest. This article attempts to paint in “broad brushstrokes” as to the options available to a disappointed offeror.
A contractor may file a protest where it identifies an impropriety that may jeopardize its economic interests during a federal procurement. See Federal Acquisition Regulation (“FAR”) § 33.101. A contractor may first file an “agency level” protest with the procuring agency. FAR § 33.103. If such an agency-level bid protest is unsuccessful, the contractor may then appeal to the Government Accountability Office (“GAO”) or the Court of Federal Claims (“COFC”). FAR § 33.103(d)(4); 4 Code of Federal Regulations (“C.F.R.”) § 21.2(a)(3); 28 U.S.C. § 1491(b). In the alternative, a contractor may forgo an agency-level protest and directly file an original protest with the GAO or the COFC. FAR § 33.104; 4 C.F.R. §§ 21.2(a), 21.2(a)(1) and (2); 28 U.S.C. § 1491(b). A protest, however, will be dismissed if the protest timeliness requirements are not observed.
While the timing for filing a potential protest is influenced by the context of a particular procurement and the type of impropriety involved, the requirements for filing a timely agency level or GAO protest generally can be expressed in three basic rules. First, any protest alleging a solicitation defect, apparent before the initial proposal due date, must be filed before the initial proposal due date. FAR § 33.103(e); 4 C.F.R. § 21.2(a)(1). Second, any protest based upon alleged improprieties other than solicitation defects must be filed within ten days after the basis for the protest is known or should have been known, except in the case that a mandatory debriefing has been properly requested. FAR § 33.103(e); 4 C.F.R. § 21.2(a)(2). Third, any protest appealed to the GAO, after first being filed as an agency level protest, must be filed at the GAO within ten days after the agency’s initial adverse action on the agency level protest. FAR § 33.103(d)(4); 4 C.F.R. § 21.2 (a)(3).
The COFC, on the other hand, does not provide for specific rules on the timeliness of filing a protest. However, since the Federal Circuit’s landmark decision in Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007), a protester must challenge an alleged impropriety in a solicitation before the close of the proposal submission process. Moreover, in contrast to an agency level or GAO protest, there are no timeliness rules for protests at the COFC based upon alleged improprieties other than solicitation defects.
In sum, a disappointed offeror has three options available for filing a bid protest. First, the protester could file a bid protest with the procuring agency. If the protest is denied by the agency, the protester could then appeal those findings to the GAO or the COFC. Alternatively, the protester could proceed directly to the GAO or the COFC without first filing an agency-level protest. However, the protester should be keenly aware of the basic rules of timeliness (outlined above) that will govern whether the tribunal will exercise jurisdiction.
About the Author
Matt Carter is an Associate in the Los Angeles Office of McKenna Long & Aldridge LLP and represents and advises clients in all aspects of government contract law. Mr. Carter has experience with a wide variety of matters including bid protests, contract disputes and claims.