If you’re a government contractor considering a bid protest, the first question is: where should you file—the specific agency in question, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims (COFC)? Each offers different advantages and limitations. This post breaks down the key differences, so you can make an informed decision.
1. Agency-Level Protests: Fast and Low-Cost, but Limited
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- Best Suited for: Quick resolution of clear-cut errors without escalating to full-blown litigation.
- Drawbacks: Agencies review their own decisions, making it difficult to secure a reversal. Additionally, protesters do not receive the procurement record, limiting insight into the agency’s reasoning.
- Deadlines:
- Pre-Award: Before proposal due date.
- Post-Award: Within 10 days of when the basis of protest is known or should have been known.
- Process: Submitted directly to the contracting agency and typically resolved within 35 days.
- Outcome: The agency can deny, sustain or take corrective action.
- When to Use It:
- If you are worried about preserving agency relationships.
- If the issue is simple and/or procedural (e.g., clear evaluation errors, missing documents).
- If you need a fast decision with low legal costs.
2. GAO Protests: Automatic Stay & Faster Timeline
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- Best Suited for: Automatic stay, quick resolution and well-established precedent.
- Drawbacks: Strict deadlines and GAO tends to give agencies considerable deference in their decision-making.
- Deadlines:
- Pre-Award: Before proposal due date.
- Post-Award: Within 10 days of award or 5 days after a required debriefing to trigger an automatic stay.
- Process: GAO decides the protest within 100 days based on a paper review (rarely holds hearings).
- Outcome: GAO recommends corrective action, but agencies can refuse to comply (though rare).
- When to Use It:
- If you want an automatic stay to halt contract performance.
- If you need a relatively fast and cost-effective decision.
- If you have a strong case based on clear procurement errors.
3. Court of Federal Claims (COFC): Strongest for Complex Legal Issues
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- Best Suited for: High-stakes and complex protests or where GAO or the agency denied your protest.
- Drawbacks: No automatic stay, generally higher costs, and longer decision timelines.
- Deadline:
- Pre-Award: Before proposal due date.
- Post-Award: No strict deadline, but unreasonable delay can result in dismissal
- Process:
- Requires filing a lawsuit and more formal than GAO.
- Judges can issue binding injunctions (unlike GAO recommendations).
- More comprehensive record access and potential for discovery.
- Outcome: Unlike GAO recommendations, the court issues binding injunctions, thereby forcing agencies to comply.
- When to Use It:
- If GAO denied your protest but you think you still have a strong case.
- If you missed the GAO deadline but still want to challenge the award.
- If the case law at the Court is more favorable than GAO precedent for a key legal issue in your protest.
Protesting Smarter, Not Harder
Choosing the forum best-suited for a protest requires an understanding of both immediate and long-term needs.
- File with the Agency if you need a quick, low-cost resolution and are worried about preserving relationships, but remember that the agency is reviewing its own decision.
- File with GAO if stopping contract performance is critical—GAO offers an automatic stay if the protest is timely. The process is also faster and generally less costly than COFC.
- File with COFC if you want access to broader legal arguments and discovery, or your case involves high-stakes or complex legal issues. While no automatic stay is available, injunctions can be granted in some cases. This may also be your only option if you missed the GAO deadline.
If you’re unsure where to file, consult Matt Carter to evaluate your best strategy. Making the right choice can determine the success of your protest.