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Choosing the Best Forum for Filing Your Bid Protest – GAO vs. Court of Federal Claims

By on October 26, 2021 | Posted in Bid Protests

Choosing the Best Forum for Filing Your Bid Protest – GAO vs. Court of Federal Claims

GAO & COFC logos

Choosing the correct forum is the first step in winning a bid protest. Both the Government Accountability Office (“GAO”) and U.S. Court of Federal Claims (“COFC”) have unique advantages and disadvantages.

Knowing which forum is likely to yield the best results is imperative.

This post aims to advise when and why a protester should file a bid protest at the GAO.

Automatic Stay of Performance or Award is Key

The most advantageous aspect of filing a bid protest with the GAO is the automatic stay of contract performance available under 10 U.S.C. § 2304, the Competition in Contracting Act (“CICA”).  When a protest is filed before an award is made by the Contracting Officer, the protester obtains a stay of award immediately upon the filing. The GAO must resolve the protest before the agency can award the contract. (However, while the award is stayed, it does not prevent the agency from proceeding with other pre-award steps of the procurement process).

When a protest is filed after the agency awarded the contract, a stay of performance is issued as long as the protest is filed and the agency receives notice for the GAO, within ten days after contract award or within five days after a required debriefing (when that exception applies).

(Potential protestors should note that pursuing an agency-level protest first does not toll the clock for obtaining a stay at GAO). . 

If this deadline is missed, the protest may still be timely IF it meets GAO’s timeliness rules, but the protester does not receive the benefit of the stay. Obtaining a stay is important because it preserves the status quo, provides the protestor the opportunity for meaningful remedy, and prevents the agency from arguing that it is prejudiced by the protest because the contract performance is too far along. Furthermore, stays are critical for incumbents who lost the award decision because the incumbent often continues performance, and receives payment, until the protests are resolved.

In contrast, filing a timely bid protest with the COFC does not entitle the protester to an automatic stay. Rather, a stay is only granted if the agency agrees to a voluntary stay or the Court issues a temporary restraining order (“TRO”) or preliminary injunction (“PI”).  Obtaining a TRO or PI is very difficult because the protester must prove that (1) the protester is likely to succeed on the merits, (2) the protester will be irreparably harmed without a stay, (3) the balance of the hardships tips in the protester’s favor, and (4) the stay is in the public interest.  Accordingly, if obtaining a stay is critical or highly advantageous to a protester, the GAO is almost always the better forum.

When a Broad Scope of Discovery is Not as Important

One of the greatest advantages of filing a bid protest with the COFC is that it allows for more expansive discovery, so a protester should file its protest with the GAO when discovery is not as important.  Generally, the GAO only requires the agency to produce documents specifically relevant to the protester’s arguments. For example, if the protester challenges its technical evaluation, the GAO is unlikely to require the agency to produce the awardee’s technical proposal.

At the COFC, the scope of discovery is much broader. The agency must produce the complete administrative record, including all documents the agency relied upon in making its procurement decision. The government must produce all documents even if irrelevant to the protester’s claim. Often, protesters discover additional protest grounds by obtaining access to these documents. If the protest is filed in the GAO, the protesters may not learn of potential supplemental protest grounds that a full administrative record would reveal. The COFC’s advantage is minimized if the protester is satisfied with the original protest grounds.

When the Protester Favors Cost Efficiency and Reimbursement of Attorney Fees

Filing a protest in the GAO is significantly less expensive than filing a protest in the COFC.  While there is only a slight difference in the filing fee–the GAO  imposes a $350 fee through the Electronic Protest Docketing System (“EPDS”) and the COFC requires a $402 filing fee–after filing, costs accumulate much more quickly in the COFC than in the GAO.  Both the discovery process and obtaining a TRO or PI adds costs to protests in the COFC.  Additionally, because the COFC requires formal proceedings, attorneys’ fees of litigating a protest are usually higher than at the GAO.  While hearings are rare in the GAO, they are commonplace in the COFC.  These hearings drive up cost.

Moreover, if the protest ground is successful at the GAO, the GAO will recommend the agency reimburse the protester’s attorneys’ fees.  While large businesses are restricted to a set rate of reimbursement, no restriction exists for small businesses at GAO.  Recovery of attorneys’ fees is rare in the COFC. Large businesses are, there is no automatic award of attorneys’ fees for small businesses, and awarded attorneys’ fees are restricted by a statutory hourly rate under the Equal Access to Justice Act.  When cost is an important factor to the protester, protesting at the GAO is the much better option.

When the Protester Favors Time Efficiency

Generally, the GAO reaches its decision within 100 days after filing.  In the COFC, there is no set timeline for decisions, but the process usually takes longer to resolve than 100 days, sometimes much longer.  The COFC’s more formal proceedings, such as hearings and more in-depth discovery, delay decisions.  The increased time results in the COFC being better equipped to hear more complex and difficult to litigate questions or new issues or programs such as procurements related to Other Transaction Agreements. Conversely, when a protester wants to resolve the protest quickly or the agency has made obvious errors, the GAO is the forum to choose.

GAO Caselaw on Point

Caselaw may exist in either the COFC or the GAO that is directly on point with a particular protest.  However, because the GAO receives substantially more protests each year, a protester is likelier to find caselaw that more closely resembles his claim at the GAO.  For example, in 2018, 179 protests were filed in the COFC, whereas 2,607 protests were filed at the GAO.  Moreover, in the 2020 fiscal year, 51% of protests filed in the GAO were effective, eclipsing the 50% threshold for the first time. Similar statistics are not kept for the COFC. The GAO has troves of successful protests, and some may have facts that fit well with a potential protest.

When a Protester Wants Two Bites at the Apple

If the GAO denies a protest, the protester can file a claim with the COFC.  While the COFC looks at the matter with fresh eyes and need not follow any decisions reached by the GAO, the GAO decision is part of the administrative record reviewed before the COFC. Undoubtedly, putting forth a rushed and weak argument in the GAO can damage a protester’s chances in the COFC. Regardless, such a process is beneficial to the protester. While costs will accumulate and the automatic stay obtained through the GAO will expire, the protester gets two bites at the apple by filing the protest at the GAO first.

Conclusion

In most cases, presuming a protestor has not missed the timelines for filing at GAO, the choice between filing a protest at the GAO or in the COFC boils down to the two main considerations. If an automatic stay and a relatively quick resolution of the protest is the protester’s number one priority, the GAO is the best forum. Alternatively, if the protester prioritizes obtaining the administrative record, the protester should choose to file the claim in the COFC. The other factors can inform a protester’s decision if the protester is still unsure of which forum to choose, but these two factors of the automatic stay and quick decision will determine GAO is the more beneficial forum for the vast majority of cases.

 

Meghan Douris, Howard Roth, and Ryan Gilchrist contributed to this post and standby, with the rest of the Oles Morrison bid protest team, to assist with questions or comments on bid protests of federal contracts.

Meghan Douris, douris@oles.com

Howard Roth, roth@oles.com

Ryan Gilchrist gilchrist@oles.com

 

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