Automatic Stay? Yes, Subject to Override
For pre-award protests, the agency must suspend award of the contract once it receives notice from GAO that a protest has been filed. FAR 33.104(b).
For post-award protests, the agency must suspend performance if it receives notice of the protest within either 10 days of award, or, if a debriefing is required and timely requested, 5 days of the debriefing date offered to the protester, whichever is later. FAR 33.104(c). (Note: Debriefings are not required for procurements under FAR Part 13 or FAR Part 14, except 14.5 (two step sealed bidding).)
In DoD procurements, offerors may submit additional questions within 2 business days of receiving a requested and required debriefing, and DoD has 5 business days to respond. 10 U.S.C. § 2305(b)(5). If the offeror accepts the originally offered debriefing date and submits additional questions, the 5 day stay deadline starts when DoD answers the questions. If the offeror does not accept the offered debriefing date or does not submit questions, the 5 days starts on the originally offered date.
GSA applies similar enhanced debriefing procedures to certain procurements.
Jurisdictional Timelines:
A pre-award protest based on RFP improprieties that are apparent before the initial proposal submission deadline must be filed prior to that deadline. Solicitation improprieties incorporated after the initial deadline must be protested by the next deadline for submitting revisions. 4 C.F.R. § 21.2(a)(1). Where a basis for challenging the terms of a solicitation does not arise until after the submission of final proposals, a protest is due 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(a).
An offeror excluded from the competitive range before award must request a debriefing in writing within 3 days after receipt of notice of exclusion to obtain a “required” debriefing. FAR 15.505(a)(1). The offeror then must file its protest within 10 days after the debriefing. 4 C.F.R. § 21.2(a)(2).
For competitions where a debriefing is requested and required, post-award protests must be filed not later than 10 days after the debriefing closes, but not before the offered debriefing date. 4 C.F.R. §21.2(a)(2). For DoD, the 10 days run from when DoD answers any “additional questions” submitted after debriefing.
For all other protests, the protester must file its protest within 10 days after the basis of protest is known or should have been known. 4 C.F.R. § 21.2(a)(2).
Subject Matter Jurisdiction Limits:
An “interested party” may protest a solicitation, its cancellation, an award, or the termination of a contract where the termination was based on an award impropriety. 4 C.F.R. § 21.1(a). An “interested party” is an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. § 21.0(a)(1).
GAO will not consider protests addressing contract administration, various SBA issues, or affirmative responsibility determinations. 4 C.F.R. § 21.4. GAO will not consider alleged Procurement Integrity Act violations unless they were brought to the agency’s attention within 14 days of discovery. Id.; FAR 33.102(f); 41 U.S.C. § 2106.
Process for Appealing Unsuccessful Decision:
A Request for Reconsideration may be filed at GAO within 10 days after the basis for reconsideration is known or should have been known. 4 C.F.R. § 21.14.
A protester may effectively appeal a GAO decision by filing suit in the Court of Federal Claims alleging that the challenged agency action is arbitrary, capricious, or contrary to law. 5 U.S.C. § 706(2)(A); 28 U.S.C. § 1491. There is no fixed time for filing such a suit.
