We made it! Today, the Fox Rothschild Federal Government Contracts & Procurement Blog concludes our ten-part series on Government Accountability Office (“GAO”) bid protests with Part 10: Automatic Performance Stays. The whole series is now available to review: Parts 1 (Who May File a Bid Protest), 2 (Protest Parties), 3 (What May Be Protested), 4 (Protest Timing), 5 (How to Prepare Your Protest), 6 (Protest Procedures), 7 (Protest Aftermath), 8 (Document Requests), and 9 (Protective Orders)
One of the key advantages to GAO bid protests is the opportunity to obtain an automatic stay of contract performance. That is, if you meet certain deadlines in filing your protest (explained in more detail below), the agency is prohibited from awarding the contract (pre-award protests) or continuing with performance of the contract work (post-award protests). The stay is authorized by a Federal statute known as the Competition in Contracting Act (“CICA”) (31 USC § 3553).
The benefit of a performance stay is obvious – the contract cannot be awarded or performed while the stay is pending. In the case of short-term contracts, the stay can be of the utmost importance. In the roughly 100 days that it takes to resolve a GAO bid protest, a contract can be substantially performed. The last thing a contractor needs is to spend the time, money, and effort to pursue and win a protest – only to be denied relief because the agency determines that performance by the awardee is now too far down the road to completion.
As with many things we’ve discussed during this GAO bid protest series, timing is the key: For pre-award protests, a CICA-stay can be obtained simply by filing a timely protest. Once you have the pre-award stay, the contract cannot be awarded during the pendency of the protest. CICA contract stays are slightly more complicated in the post-award context. If the contract has already been awarded, the protest must be filed within 10 days of the date of the award or 5 days after the required debriefing (whichever is later) in order to receive the stay.
Frustratingly, even if you do everything right in order to file on time and obtain a CICA stay – that still doesn’t mean that you get to keep the stay. The agency may seek to override the stay by arguing that there are “urgent and compelling” circumstances and that immediate performance of the contract is in the best interest of the United States. If the agency does decide to override the stay and proceed with the contract, your only option will be to challenge that decision in the Court of Federal Claims (not before the GAO).
I hope that you’ve enjoyed this series, and with any luck learned a thing or two along the way. If there is a bid protest subject you’d like to see that I didn’t cover – of if you need even more information about a topic I did cover – you can always feel free to leave a comment or contact me directly (email@example.com, 202-696-1460).