It’s time for the third installment of the Fox Rothschild Federal Government Contracts & Procurement Blog’s Government Accountability Office (“GAO”) bid protest series. In the first two installments, we covered who may file a GAO protest (Part 1) and what other parties can (and will) participate in the process (Part 2). Today, in Part 3, we’ll discuss What May Be Protested.
For the most part, GAO bid protests challenge alleged errors or defects by the government in connection with the award (or proposed award) of a federal contract. Generally speaking, a protest must allege that the government violated a specific procurement rule or regulation – such as a failure to award a contract in a manner consistent with the terms of a solicitation. The GAO will also consider protests based on the government’s “unreasonable” actions during administration of a contract award.
Protests can also challenge alleged defects in the written solicitation issued by the government agency. Examples of these defects include overly restrictive specifications and ambiguous evaluation factors. The GAO has also considered what is known as a “reverse protest” – that is, where a contractor protests the agency’s proactive decision to terminate a contract based on supposed improprieties in the award process.
Unlike these generally permissible grounds for a bid protest, there are certain kinds of protests that the GAO will not consider. These include:
• Small Business Size Determinations (which are within the exclusive domain of the Small Business Administration);
• Subcontractor Protests (unless specifically requested by the procuring agency, or in limited circumstances where the subcontract is actually administered by the government);
• Task and Delivery Orders ($10 million threshold); and
• Debarment and Suspension Matters (for some practical guidance on this issue, please see my prior article).
Regardless of what alleged error or defect your bid protest is challenging, it is important for your protest to include a clear statement concerning exactly what is being protested. The GAO has the express authority to summarily dismiss protests that do not include a “detailed statement” of the factual and legal grounds on which the protest is based.
Now that we’ve looked at the “who” and “what” of GAO bid protests – next week we will take a look at “when” a bid protest must be filed. The GAO administers bid protests on a very tight timeline with strict deadlines, so be sure to check back in next Tuesday. As always, please reach out to me directly with any questions.