Bid Protests at GAO: A Descriptive Guide

Protest Dispostion

GAO will either dismiss, deny, or sustain a protest. GAO generally sustains protests where it determines that the contracting agency violated procurement statutes or regulations, unless it concludes that the violation did not prejudice the protester. Where a protest is sustained, GAO will recommend appropriate corrective action. In fashioning its recommendation, GAO will take into consideration the circumstances of the procurement, such as the agency's stated need for the goods or services at issue, the extent to which performance has been completed (in post-award protests where performance has not been stayed), and similar factors. In appropriate circumstances, GAO will recommend that the agency terminate an improper award or, where this is not feasible, that the agency not exercise any renewal options in the improperly awarded contract. 4 C.F.R. § 21.8(a), (b).

If the protest is sustained, GAO generally will recommend that the protester be reimbursed the costs of filing and pursuing the protest, including attorneys' fees and consultant and expert witness fees. Occasionally, where there is no other relief available, GAO will recommend that the protester also be reimbursed the costs of preparing its bid or proposal. 4 C.F.R. § 21.8(d).

Practice Tip: Agency Corrective Action--Costs

Where the contracting agency takes corrective action in the face of a clearly meritorious protest, but fails to do so promptly, GAO may recommend that the agency pay the protester its reasonable protest costs. In general, if an agency advises GAO of its intent to take corrective action by the due date of its protest report, GAO will consider that action to be prompt and will not recommend reimbursement of protest costs.

Where GAO has recommended reimbursement of costs, the protester must submit a detailed claim for costs, certifying the time expended and costs incurred in pursuing the protest, directly to the contracting agency within 60 days after receipt of GAO's recommendation that the agency pay these costs. 4 C.F.R. § 21.8(f)(1). A claim must be supported by adequate documentation. GAO expects the protester and the agency to determine the exact amount to be paid. If the protester and agency cannot agree, GAO may, at the protester’s request, decide the matter. 4 C.F.R. § 21.8(f)(2).

Protesters should keep in mind that, except in very limited circumstances, the costs for attorneys' fees may not exceed $150 per hour. GAO never recommends that agencies pay lost profits or other common-law damages.

When GAO recommends corrective action, the Competition in Contracting Act of 1984 requires the agencies affected to report to the Comptroller General whenever they have not fully implemented the recommendation within 60 days. The Comptroller General, in turn, reports to the Congress each instance where recommendations were not fully implemented.

Practice tip: Distributing GAO’s Decision

Protesters may check on the status of a protest by reviewing the Bid Protest Docket on GAO’s web site (www.gao.gov), under the Legal Products heading, or by calling GAO’s bid protest status line at (202) 512?5436. Once signed, a copy of a decision is generally available on GAO’s web site within 24 hours of the case being closed. Decisions also will be provided to the parties by mail, facsimile or e-mail. 4 C.F.R. § 21.12(b).

Practice Tip: Public Versions of Decisions

Where a decision contains protected information, it will not be accessible from GAO’s web site or otherwise made available to the public. Instead, a redacted version of the decision, omitting the protected information, will be prepared as soon as possible for release to the public, and the redacted version will be accessible from GAO’s web site. 4 C.F.R. § 21.12. GAO typically will issue a redacted public version of the decision within 2 to 3 weeks after the protected decision is issued. GAO will seek the views of the parties before determining which information, if any, should be redacted from the public version of the decision. Parties should provide their views in this regard expeditiously.

Even if covered by a protective order during the protest process, information will be redacted only where it is determined to be proprietary or source selection sensitive. For example, evaluation scores and unfavorable past performance information generally will not be redacted.