Today we continue our series on Government Accountability Office (“GAO”) bid protests with Part 6: GAO Bid Protest Procedures. If you would like catch up on previous installments in the series, here are some links to Parts 1, 2, 3, 4 and 5. In this installment, we’ll be taking a look at how a typical GAO bid protest unfolds – from the time of filing to the ultimate decision.

After a protest is prepared and filed, the GAO issues a written Notice of Acknowledgement. The GAO’s Acknowledgement includes some very important information that will guide the protest process. First, GAO will assign your protest with a number (the current format being used has a “B” designation, followed by 6 numbers, such as “B-123456”) and a GAO attorney. All future communications with GAO concerning the protest should be directed to this attorney and reference the newly-assigned case number.

The GAO’s Notice will also include two key dates: (1) the date the Agency Report is due (about 30 days after protest is filed); and (2) the date by which GAO will issue its final written decision (about 100 days after the protest is filed). The Agency Report serves as the formal explanation of the agency’s position concerning the protest. The Report usually includes, at a minimum, a statement of relevant facts (signed by the contracting officer) and an argument section setting forth the agency’s legal position.

The protester is required to file written comments in response to the Agency Report within 10 days. In fact, the failure to provide timely comments to the Agency Report is grounds for immediate dismissal of a protest. Comments to an Agency Report are the protester’s second (and most likely final) opportunity to state its case. Careful thought should go into how to further bolster and support a protest in light of arguments in opposition likely raised in the Agency Report. Moreover, to the extent that the Agency Report (or other documents disclosed by the agency) reveals previously unknown information, a protester can use the comments to amend or supplement the grounds asserted in the original protest.

Following the filing of the Agency Report and protester’s written comments, the GAO record will close. After the record closes, additional correspondence or comments may only be submitted at the discretion of the GAO. At the request of any party, or on its own initiative, the GAO may also conduct a hearing (either in-person or by telephone) to supplement the written record. In our experience, substantive hearings before the GAO are the exception, not the rule. Most protests are decided “on the papers” – so you should not hold back on any facts or arguments that you want the GAO to consider.

Absent a hearing, GAO will proceed with making a decision sustaining, dismissing, or denying the protest. The GAO strives to always stay within the 100-day timeframe from protest filing to a written decision. When a protest is sustained, the GAO will recommend that the agency take certain corrective action, such as terminating an improper award or requiring the GAO to reinstate an improperly excluded offeror. Your protest should be very clear in identifying exactly what action should be taken when your protest is sustained. Further, if it sustains a protest, GAO will often recommend the reimbursement of the protester’s costs of filing and pursuing the protest. This award can include the payment of your attorneys’ fees incurred as part of the protest.

In the unfortunate event that your protest is dismissed or denied, that will trigger your right to appeal the GAO’s decision. We’ll be discussing the full-range of post-protest options in Part 7 of this series – so make sure to tune back in next week.