Who hears bid protests?
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UPDATED: Jan 28, 2009
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You may generally make a bid protest to one of four forums: (1) the awarding agency; (2) the General Accounting Office (“GAO”); (3) the U.S. Court of Federal Claims; or (4) the U.S. district courts. There are advantages and drawbacks to each.
The GAO, the most popular forum in terms of numbers of protests received, is inexpensive and independent from the awarding agency. Significantly, if certain timeliness requirements are met, you may obtain an automatic stay of contract award or suspension of performance under the Competition in Contracting Act. See 31 U.S.C. section 3553. However, the GAO has been criticized because of the minimum amount of discovery it makes available to protesters.
The federal agencies also provide an inexpensive forum. The federal agency bid protest procedures are relatively informal and provide little if any means to obtain true discovery. Also, many protesters believe that bringing a post-award bid protest to the agency that was responsible for making the contract award at issue is futile. On the other hand, protesting to the agency does not preclude the protester from later filing a protest at the GAO or the courts if the timeliness requirements are met. Moreover, protesting to the federal agencies concerning solicitation defects prior to award is one inexpensive way to demonstrate to the agency that your concerns should be seriously taken.
The U.S. Court of Federal Claims and the U.S. district courts provide a more formal forum and are generally more expensive than the GAO and the federal agencies. The protest action at these courts usually commences upon the filing of a complaint, application for a temporary restraining order, and a motion for preliminary injunction. Many practitioners believe that these courts provide greater discovery opportunities and thus afford protesters a better opportunity to disclose Government wrongdoing.
Needless to say, there exists a variety of rules and regulations for each of these forums. If you have a problem and are unhappy with any proposed resolution, we advise you to consult an attorney to tell you what you rights and options are advise you on what forum is best to use. Dealing with this situation by yourself does not make good sense.