A recent decision by the U.S. Court of Federal Claims (“COFC”) in Favor TechConsulting, LLC v. United States, 129 Fed.Cl. 208 (2016), illustrates the importance of knowing the rules regarding bid protest timeliness and obtaining a stay at the various bid protest forums.
In Favor TechConsulting, LLC the Government awarded Blanket Purchasing Agreements (“BPAs”) to three different contractors on September 26. The Defense Intelligence Agency (“DIA”) did not sign the awarded agreements or notify Favor TechConsulting (“Favor”) of the award until September 27. The notice of award did not indicate the BPAs were awarded on September 26. Favor filed a Government Accountability Office (“GAO”) protest on October 7, 10 days after it received the notice of award. The Competition in Contracting Act (“CICA”), 31 U.S.C. § 3553(d), requires agencies to automatically suspend performance if a protest is filed at GAO within 10 days of award.
DIA refused to stay performance, arguing the protest was late because award was made on September 26. Favor immediately sought an injunction at the U.S. Court of Federal Claims to enforce a statutory stay of performance. The Court held the Government was required to stay contract performance because:
- Statutory stay timeliness requirements run from the date the contractor receives the notice of award if the notice did not inform the contractor that the award was on an earlier date; and
- Even if timeliness requirements run from the actual award date, the awards were not executed until September 27, 10 days before the protest was filed.
The COFC’s holding is contrary to the language of CICA and GAO decisions holding the 10 day deadline for a statutory stay is strictly enforced regardless of when a contractor is notified. Potential protestors should be wary. A protestor will almost certainly be unable to obtain a statutory stay at GAO if they file a protest more than 10 days after award. Other COFC judges are not required to follow the ruling in this case.
Firms with valid grounds for protest all too often seek legal advice too late to obtain a timely protest and/or stay performance. As the Favor TechConsulting decision demonstrates, contractors need to be aware of the timeliness rules at the various bid protest forums.
To learn the requirements for filing a timely protest and staying contract performance visit our website’s bid protest page or continue reading below.
Government Accountability Office (“GAO”)
The general rules concerning timeliness and obtaining a stay at GAO are as follows:
- In order to be TIMELY a GAO protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of proposals.
Examples of solicitation defects include unduly restrictive specifications or other contract provisions and the failure of the solicitation to meet legal requirements such as bundling, domestic preferences, etc.
- In order to be TIMELY a GAO protest based on OTHER THAN A SOLICITATION DEFECT must be filed the later of (a) within 10 days of when the protestor knew or should have known the ground of protest, whichever came first or (b) within 10 days of a required debriefing.
The most common basis for a protest other than a solicitation defect is improper evaluation of proposals. See discussion of debriefings below.
- In order to be TIMELY a GAO protest FOLLOWING A TIMELY AGENCY PROTEST must be filed within 10 days of when the protestor knew or should have known of adverse agency action, whichever came first.
- In order to obtain a STATUTORY STAY at GAO a protest must be filed and agency notified by GAO either within (a) 10 days of award or (b) 5 days of the earliest date offered for a required debriefing.
See discussion of debriefings below.
Protestors should file before the deadline date because GAO is allowed one calendar day to notify the agency of the protest after filing.
It is important to note that the time for obtaining a stay at GAO is not extended by a prior timely agency protest. Thus, pursuing an agency protest generally precludes obtaining a stay in a subsequent GAO protest.
U.S. Court of Federal Claims (“COFC”)
Unlike the GAO or agency protests the rules for obtaining a stay at the COFC are based on judicial precedent rather than statutory or regulatory provisions.
The general rules concerning Filing Deadlines and Obtaining a Stay at COFC are as follows:
- In order to be TIMELY a COFC protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of proposals.
- In order to be TIMELY a COFC protest based on OTHER THAN A SOLICITATION DEFECT must be filed before the Government is prejudiced by the delay.
- In determining whether to obtain a temporary restraining order or preliminary injunction staying performance the Court will consider: (1) the protestor’s likelihood of success on the merits; (2) whether the protestor will suffer irreparable harm if injunctive relief is not granted; (3) whether the balance of hardships to the parties favors the grant of injunctive relief; and (4) whether it is in the public interest to issue injunctive relief.
There are no automatic stays at the COFC. As a condition of granting injunctive relief the Court may require the protestor to furnish a bond which may be lost if the protest is denied.
Procuring Agency
The general rules concerning Filing Deadlines and Obtaining a Stay at the procuring agency are as follows:
- In order to be TIMELY an AGENCY protest based on a SOLICITATION DEFECT must be filed prior to the time for receipt of proposals.
- In order to be TIMELY an AGENCY protest based on OTHER THAN A SOLICITATION DEFECT must be filed within 10 days of the earlier of when the protestor knew or should have known the ground of protest.
- In order to obtain a STAY an AGENCY protest must be filed either within (a) 10 days of award or (b) 5 days of the earliest date offered for a required
The above rules concerning timeliness and obtaining a stay at the various procurement forums are general. Legal advice should be sought concerning the particular facts of your case.