Overview
This section prescribes the procedures and requirements for bid protests filed with the Government Accountability Office (GAO), as governed by 4 CFR Part 21. It details the mandatory timelines for agency responses, the process for protecting sensitive information, and the conditions under which contract awards or performance must be stayed.
Key Rules
- Notification and Filing: The protester must furnish a complete copy of the protest to the agency within one day of filing with GAO; failure to do so may result in dismissal.
- Agency Report (AR): The agency must submit a comprehensive report to GAO within 30 days (or 20 days under the "express option") including the contracting officer’s statement of facts, a memorandum of law, and all relevant evaluation documents.
- The "CICA Stay" (Pre-award): If a protest is filed before award, the agency cannot award the contract unless the Head of the Contracting Activity (HCA) justifies it via a nondelegable written finding of urgent and compelling circumstances.
- The "CICA Stay" (Post-award): If notice is received within 10 days of award or 5 days of a required debriefing, the agency must suspend performance unless the HCA issues a written finding that performance is in the best interests of the U.S. or justified by urgent and compelling circumstances.
- Decision Timeline: GAO typically issues its recommendation within 100 days of filing (65 days for the express option).
- Protective Orders: GAO may issue protective orders to limit the disclosure of proprietary or source-selection sensitive information to only authorized legal counsel.
- Protest Costs: If GAO sustains a protest, it may recommend the agency pay the protester’s costs, including attorney fees (capped at $150/hr for large businesses) and bid preparation costs.
Practical Implications
- The strict timelines for triggering a stay of performance make the timing of a debriefing critical; missing the 5-day window after a required debriefing can prevent a protester from stopping the incumbent's work during the litigation.
- Agencies face a heavy administrative burden to compile and redact the Agency Report within 30 days, requiring immediate and intensive coordination between Contracting Officers and legal counsel.