Protests to the General Accountability Office (GAO)

By Nick Economou, SBTDC/PTAC Counselor at UNC-Charlotte

The U.S. General Accountability Office (GAO) recently released its 2014 bid protest report to Congress for fiscal year (FY) 2014. During FY 2014, GAO received 2,351 protests and sustained 72 of them or a sustain rate of 13%. In FY 2013, Congress added a new requirement for GAO’s annual report to Congress that required the report to include a summary of the most prevalent grounds for sustaining protests. GAO’s review showed that the most prevalent reasons for sustaining the protest in favor of the protestor were: (1) failure of the agency to follow evaluation criteria; (2) flawed selection decision; (3) unreasonable technical evaluation; and (4) unequal treatment. GAO noted that a significant number of protests do not reach a decision on the merits because agencies voluntarily take corrective action in response to the protest rather than defend the protest on the merits.

During your bid preparation, if you find an ambiguity in the bid, contact the agency buyer before bidding. If you need assistance in bid preparation or need another set of eyes before as a review before you submit your bid or proposal, contact your PTAC counselor. Protesting to the GAO after bid opening is time consuming and costly.

Many factors go into a decision of whether to protest and you have to answer questions such as: (1) Did the agency make a mistake? (2) How strong is my evidence? (3) Did the mistake affect the award decision? (4) How much will a protest cost? (5) Will a protest affect my relationship with the agency? (6) If I win the protest, what remedy will GAO recommend?

Here are some frequently asked questions and answers to bid protests to the GAO.

What is a bid protest? A bid protest is a challenge to the award or proposed award for a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.

What kinds of bid protests can be filed at GAO? Protests may be filed against procurement actions by federal government agencies.

What kinds of protests cannot be filed at GAO? Protests may not be filed against procurement actions by nonfederal government agencies, such as state, local or foreign governments, or actions by certain exempted federal agencies, such as the Postal Service.

Do I need an attorney to file a protest or participate as an intervenor? No. Parties may file a protest or participate as an intervenor without being represented by an attorney. However, only attorneys re permitted to have access to material subject to a protective order.

What is “Corrective Action”? Corrective action is an agency’s voluntary decision to address an issue in response to a protest. Corrective action can occur at any time during a protest. An agency’s corrective action may involve a re-evaluation of proposals, a new award decision, an amendment to a solicitation, or other acti0ns. GAO will typically dismiss a protest if an agency takes corrective action that resolves protest arguments or provides the relief sought by the protestor.

What are the possible outcomes for a GAO protest? A protest is concluded when it is: (1) withdrawn by the protestor; (2) dismissed by GAO because the protest had a technical or procedural flaw or because the agency takes corrective action that addresses the protest; (3) denied by GAO because they found no merit to the protest; or (4) sustained by GAO because they agreed with the protest arguments.

How can I keep up-to-date on new protest decisions? (1) subscribe to a daily email update; (2) subscribe to any of GAO’s legal products feeds, and; (3) follow GAO on twitter.

For more information please go to the following link: www.gao.gov/legal/bids/bidprotest.html

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