Frankel PLLC

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). Debriefings are required for orders in excess of $6 million. FAR 16.505(b)(6).

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 uses similar enhanced debriefing procedures for some task order awards.

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 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).

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:

A GAO protest of an order issued by DoD, NASA, or the Coast Guard valued in excess of $25 million may be brought on any grounds. 10 U.S.C. § 2304c(e)(1)(B). A GAO protest of an order issued by other civilian agencies valued in excess of $10 million may be brought on any grounds. 41 U.S.C. § 4106(f)(1)(B).

If the value of a DoD, NASA, or Coast Guard order is less than $25 million, or the value of a civilian order is less than $10 million, a protest may be brought only on the grounds that the order improperly increases the scope, period, or maximum value of the contract. 10 U.S.C. § 2304c(e)(1)(A); 41 U.S.C. § 4106(f)(1)(A).

All other protests in connection with the issuance or proposed issuance of a task or delivery order are barred.

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.

Automatic Stay? No

In order to obtain a stay of performance during the protest, the protester must file a motion for preliminary injunction demonstrating: (1) the protester is likely to succeed on the merits; (2) it will suffer irreparable harm absent an injunction; (3) granting the injunction will serve the public interest; and (4) the harm the protester will suffer without an injunction outweighs the harm the injunction would cause the Government and third parties.

Jurisdictional Timelines:

There are no strict timelines for filing a protest other than a 6 year statute of limitations.  However, a protester’s delay in filing may affect its ability to obtain injunctive relief. Harmonia Holdings Group, LLC v. U.S., 20 F.4th 759, 767 (Fed Cir. 2021).

A protester is deemed to waive a challenge to the terms of a solicitation unless it files an agency, GAO, or COFC protest prior to the proposal submission deadline.  Blue & Gold Fleet, L.P. v. U.S., 492 F.3d 1308, 1315 (Fed. Cir. 2007).  COFC cases have extended the waiver rule to other kinds of pre-award protests, but the Federal Circuit has expressed disapproval.  Harmonia Holdings, 20 F.4th at 767.

Subject Matter Jurisdiction Limits:

The COFC may hear a task or delivery order protest only if it (1) alleges that the order improperly increased the scope, period, or maximum value of the underlying contract, or (2) challenges agency action separate from the “issuance or proposed issuance” of an order. Tolliver Grp., Inc. v. U.S., 151 Fed. Cl. 70, 103-05 (2020).

Process for Appealing Unsuccessful Decision:

A protester may appeal a COFC decision to the U.S. Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Federal Circuit within 60 days after the date of entry of judgment. 28 U.S.C. §§ 1295(a)(3); 2107(b); 2522; COFC Rule 58.1; FRAP Rule 3; CAFC Rules 3 and 4 (Practice Notes).

The Federal Circuit reviews the COFC’s judgments de novo.

Automatic Stay? Yes, Subject to Override

For pre-award protests, the agency must suspend award of the contract until it has resolved the protest. FAR 33.103(f)(1).

For post-award protests, the agency must suspend performance if it receives the protest within either 10 days of award, or, if a debriefing is required and timely requested under FAR 15.506, 5 days of the debriefing date offered to the protester, whichever is later. FAR 33.103(f)(3).  Not all debriefings are required.

Pursuing an agency protest does not extend the time for obtaining a stay at GAO; however, agencies may voluntarily agree to continue a stay during a subsequent GAO or COFC protest. FAR 33.103(f)(4).

Jurisdictional Timelines:

A pre-award protest based on improprieties in the RFP must be filed before bid opening or the closing date for receipt of proposals. FAR 33.103(e).

All other protests must be filed no later than 10 days after the basis of protest is known or should have been known. FAR 33.103(e).

Check to make sure the agency has not adopted more stringent filing rules.

Subject Matter Jurisdiction Limits:

Technically, agency jurisdiction is limited to protests that allege an order improperly increased the scope, period, or maximum value of the underlying contract, or that challenge agency action separate from the “issuance or proposed issuance” of an order.  But an agency has inherent discretion to reconsider its decisions.

An offeror may file a non-protest “complaint” with the agency’s task-order or delivery-order ombudsman, who must ensure the offeror was afforded a fair opportunity to be considered for the order. AR 16.505(b)(8). 

Process for Appealing Unsuccessful Decision:

A protester may seek higher-level agency review as provided in the agency’s rules.  Such review does not extend GAO’s timeliness requirements.  FAR 33.103(d)(4).

A GAO protest can be filed within 10 days of actual or constructive knowledge of the agency’s first adverse action expressly or impliedly indicating the agency has denied the agency protest.  The agency protest must have been timely.  FAR 33.103(d)(4).

A protester may file suit in the COFC alleging that the challenged agency action is arbitrary, capricious, or contrary to law, although the COFC’s jurisdiction over task order protests is limited.  There is no fixed deadline for filing.