Federal Government Bidding: Who Ensures It Is a Fair Process?

imagesThe U.S. government is the world’s largest buyer of products and services—to the tune of about $200 million a year. It is obvious that many companies elect to bid on federal government contracts because they can provide a benefit to any business. However, with so much money at stake, how can a business be sure they are getting a fair shot at a contract?

The U.S. Government Accountability Office (“GAO”) is an independent agency that provides the United States Congress audit, evaluation and investigative services. It is also a forum for bidders and offerors seeking federal government contracts who believe that contracts have been, or are about to be, awarded in violation of the laws and regulations that govern contracting with the federal government.

What can be protested?

While most protests challenge the acceptance or rejection of a bid or proposal and the award or proposed award of a contract, GAO can consider protests of defective solicitations (e.g. allegedly restrictive specifications, omission of a require provision, and ambiguous or indefinite evaluation factors), as well as certain other procurement actions (e.g. the cancellation of solicitation).  There is also a list of things that can’t be protested and those include a “determination that a bidder or offeror is capable of performing a contract” since it is in the contracting officer’s discretion.

But, exceptions to the list of things that can’t be protested are allegations that definitive responsibility criteria in a solicitation were not met and those that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the federal officer awarding the contract unreasonably failed to consider available relevant information or otherwise violation statute or regulation. 4 C.F.R. 21.5(c).

Who can protest?

A protest can be filed by an “interested party,” which means an actual or prospective bidder or offeror with a direct economic interest in the procurement. 4 C.F.R. § 21.0(a)(1).

When can an “Interested Party” protest?

There is a timeliness requirement to a protest with the GAO. Protests not involving a complaint with the actual solicitation itself must be filed not later than 10 days after the protester knew or should have known the basis of protest (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is “requested and, when requested, is required” (that is, a debriefing that is required by law). In these cases, with respect to any protest basis that was known or should have been known before the statutorily required debriefing, the protester should not file its initial protest before the debriefing date offered to the protester, but must file its initial protest not later than 10 days after the date on which the debriefing was held. 4 C.F.R. § 21.2(a)(2). There is an exception, however, that states “GAO, for good cause shown, or where it determines that a protest raises issues significant to the procurement system, may consider an untimely request.” 4 C.F.R 21.2(b).

How do you file a protest?

There is no prescribed form for filing a protest, except that the protest must be in writing. 4 C.F.R. § 21.1(b). Protests may be filed by hand delivery, mail, commercial carrier, facsimile transmission, or e-mail. 4 C.F.R. § 21.0(g). The written protest must have at least the following:

  1. Include the name, street address, e-mail address, and telephone and facsimile (fax) numbers of the protester (or its representative, if any);
  2. Be signed by the protester or its representative;
  3. Identify the contracting agency and the solicitation and/or contract number;
  4. Set forth a detailed statement of the legal and factual grounds of protest, including copies of relevant documents;
  5. Set forth all information establishing that the protester is an interested party for the purpose of filing a protest;
  6. Set forth all information establishing the timeliness of the protest;
  7. Specifically request a ruling by the Comptroller General of the United States; and
  8. State the form of relief requested. 4 C.F.R. § 21.1(c).

Do not forget to clearly label any document that contains proprietary, confidential or other information that cannot be released to the public. If a document contains any of this sensitive information, then the GAO must also be provided with a redacted copy of the protest. 4 C.F.R. § 21.1(g)

Can a protest request relief?

Yes. A protest may include a request for a protective order, specific documents relevant to the protest, and/or a hearing. 4 C.F.R. § 21.1(d). In this regard, protesters must explain the relevance of requested documents to their protest grounds and the reason a hearing is necessary to resolve the protest.


This article was written by attorney Maureen A. Carlson.

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