One of the first discussions we have with a client considering filing a bid protest regarding a federal procurement (pre- or post-award) is which forum to choose for the protest: the Government Accountability Office (GAO) or the U.S. Court of Federal Claims (Court). Choosing the right forum can mean the difference between winning and losing a protest. In deciding, here are some key factors you, as a protester, should consider.
Usually the first consideration we address with our clients is the value of, or need for, a stay/suspension of performance of the protested contract while the protest is pending. A stay can be valuable to a protester for several reasons. In a services contract, because a stay of the protested contract will usually result in an extension of the incumbent contract while the protest is pending, obtaining a stay can be valuable to an incumbent contractor filing a protest.
Obtaining a stay may also be necessary in certain cases to preserve the potential for meaningful relief if your protest is ultimately sustained. This is particularly the case in construction and supply contracts, where it is difficult to untangle contract performance once it’s substantially commenced. In such cases even if you win your protest, the GAO or the Court may limit your relief to your bid and proposal costs if performance has already substantially progressed during the protest.
When obtaining a stay is critical or highly advantageous to the protester, there is a major incentive to file the protest at GAO, where the protester is entitled to an automatic stay of contract performance if the protest is filed within the time specified in 31 U.S.C. § 3553.
Conversely, at the Court a protester is not entitled to an automatic stay and must either hope that the government agrees to a voluntary stay or the Court issues a temporary restraining order (TRO). While the government actually agrees to voluntary stays of performance in many protests, there is no guarantee one will be offered. And obtaining a TRO can be difficult and adds to the cost of the protest.
Another major consideration in choosing a protest forum is the difference in what documents the government must produce to the protester’s attorney (under protective order) during the protest. Generally, GAO will only require the government to produce documents that are relevant to specific arguments raised in the protest. In other words, if you protest the technical evaluation but not the past performance evaluation, GAO is unlikely to require the government to produce documents pertaining to the past performance evaluation. Similarly, if you protest your technical evaluation but not the technical evaluation of the awardee, GAO is unlikely to require the government to produce the awardee’s technical proposal.
On the other hand, at the Court the scope of what the government must produce is much broader. At the Court, the government must produce the complete administrative record, which includes all documents relied upon by the government in making its procurement decision, and the documentation of the government’s decision-making process. If you file your protest at the Court, the government will likely be required to produce all of the above-mentioned documents (and much more) even if those documents are not directly relevant to an argument raised in your protest complaint.
One big advantage of having a broader scope of discovery is that often a protester will have no reason to know of major errors in a procurement unless the protester’s attorney gets to review the procurement record in its entirety. In fact, protests are usually won not based on the arguments you initially raise, but based on supplemental arguments discovered during the review of the documents produced by the government during the protest.
Thus, a broader production of documents is likely to increase your chances of winning a protest. This factor weighs in favor of filing a protest at the Court (especially when a stay of performance is not critical).
Another consideration when choosing a protest forum is the subject matter of your protest. While the two forums generally apply the same legal standard to a protest, there are certain protest subjects that are more suited for one forum than the other.
For example, in recent years, the Court has been more receptive to protests challenging the scope of corrective action than GAO.
Because GAO handles 25 times as many protests as the Court, the GAO has a much more extensive library of case law and precedent than the Court, and the Court is not bound by GAO case law. Therefore, if a GAO decision is closely on-point to the facts/argument central to your protest, then that should be a major factor in deciding whether to file your protest at GAO or the Court.
Sometimes a protest is better explained and debated in oral argument than in written briefings. In such cases, it is a major benefit for the protester if a hearing is conducted. The Court conducts hearings in the majority of protest cases, whereas GAO only conducted hearings in 2.51 percent of cases in FY2016.
Another key consideration for contractors considering where to protest is the varying costs of filing and litigating bid protests at GAO versus the Court.
The cost in attorney’s fees of litigating a protest is usually higher at the Court than at GAO, largely because the Court requires formalities in the protest process and filings that are not required at GAO. And, while GAO rarely conducts hearings on a protest, the Court conducts hearings in most protest cases. However, on occasion, the cost of litigating a protest at GAO will be higher than the cost at the Court. This is most likely to occur when multiple rounds of supplemental protests are filed or where GAO elects to conduct a hearing.
Another consideration pertaining to the cost of the protest is the ability to win your bid protest costs and attorney’s fees if you win your protest. At GAO if you win your protest, GAO will recommend that the government also reimburse your attorney’s fees. For large businesses, the rate of reimbursement is constrained by a statutory hourly rate, but small-business protesters are not similarly constrained.
At the Court, only a subset of small-business protesters is eligible for an award of attorney’s fees if they win their protest. And, unlike at GAO, the award of fees is not automatic and is restricted by a statutory hourly rate. Large businesses are not eligible for award of attorney’s fees at the Court, even if they win their protest.
While many companies choose to protest at GAO by default, there are many occasions when filing your protest at the Court is actually the better route. The above are just some of the considerations we discuss with our clients, as the decision on whether to file at the Court or GAO is one of the most critical steps in the protest process and can easily make the difference between winning and losing.
This column provides information about the law designed to help users safely cope with their own legal needs. However, legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.
Adam Lasky is a partner at Oles Morrison, where he focuses his legal practice to help clients win and navigate government contracts. With extensive experience litigating bid protests, Adam has a notable track record of success in multiple protests before the U.S. Court of Federal Claims, GAO and state/local agencies. Government contractors look to Adam for counsel on how to enhance the chances of receiving contract awards, ensure FAR and SBA regulatory compliance, and minimize risks and resolve disputes that arise during contract performance.