Welcome back to the Fox Rothschild Federal Government Contracts & Procurement Blog for Part 7 of our 10-part Government Accountability Office (“GAO”) Bid Protest Series. In Parts 1, 2, 3, 4, 5, and 6, we’ve looked at a variety of topics, including who may file a GAO bid protest and how bid protests are decided. Today, we’ll examine the unfortunate side of things – what happens in the Aftermath of an Unsuccessful Protest. While not a happy subject, it is still important to understand your options if a bid protest is dismissed or denied by GAO.
To set the stage, you’ve filed your bid protest and made your best arguments in response to the Agency Report, but the GAO issues a decision dismissing or denying your protest. What now?! The first avenue of relief for a negative outcome on a GAO protest is to request reconsideration. A request for reconsideration must be based on something more than a mere disagreement with GAO’s decision. In other words, it is not enough to simply repeat a previously argued position. Rather, the GAO requires that the protester identify specific legal or factual errors in the decision denying the protest. A new GAO attorney is then assigned to matter. In terms of timing, a request for reconsideration must be filed within 10 days after the basis for the request is known or should have been known by the protester.
The other option for a disappointed protester is to “appeal” the decision. The word “appeal” is in quotes here because, in reality, there is no direct way to appeal a GAO bid protest decision. Rather, the correct procedure to assert that GAO’s decision was arbitrary, capricious, an abuse of discretion, or just plain wrong is to file suit in the U.S. Court of Federal Claims (“COFC”). The COFC action amounts to a clean slate and a fresh look at the agency procurement – not a referendum on the GAO. That said, the GAO decision is included as part of the record before the COFC.
We here at the Blog hope that all of your protests are successes – but it never hurts to have all of the information about bid protest reconsideration and appeals (just in case). We took an unscheduled week off from our 10-part series last week – so tune back in tomorrow for a bonus edition, Part 8: GAO Bid Protest Document Requests.