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Recommendation 67: Reduce potential bid protest processing time by 

eliminating the opportunity to file a protest with the COFC after filing at the 

GAO and require the COFC to issue a decision within 100 days of ordering a 

procurement be delayed.

Problem

Currently, the U.S. bid protest system allows for challenges in the procuring agency, GAO, and COFC. 

The system is further bifurcated into preaward and postaward challenges of procurement decisions. 

Complicating matters, challengers that lose at the agency level may bring the same, or a more refined 

protest to GAO or COFC. Challengers that lose at GAO may bring the same protest to COFC. This 

possibility creates potential for the agency to have to relitigate the same protest at three different 

levels—agency, GAO, and then COFC. Relitigating a protest at COFC after an unsuccessful protest 

outcome at GAO is what is often referred to as two bites. Only once COFC rules is a record created that 

may be subject to appellate review by the United States Court of Appeals for the Federal Circuit at the 

request of either party.

Allowing protestors to litigate a protest at GAO and, if not satisfied with the GAO decision, file the 

same or a refined version of the protest at COFC undermines one of the critical aspects of GAO’s 

jurisdictional mandate: “providing for the inexpensive and expeditious resolution of protests.”1 In the 

current system, GAO cannot conclusively resolve a protest. The option remains to relitigate that very 

same protest at COFC. For GAO to achieve its statutory purpose, the opportunity for a second protest 

opportunity at COFC must be eliminated.

Background

What appears to be the first protest was filed by an attorney on behalf of the English Construction 

Company at GAO, which at that time was the General Accounting Office.2 The attorney seeking relief 

at GAO from irregularities in the bidding process wrote: 

It is respectfully protested that not only is the acceptance of the Sloan Dickinson Corporation’s bid 

without authority of law but results in such unfair and unequal treatment of all the other bidders as to 

present a situation where without a doubt all bids should be rejected and the work re-advertised in the 

interest of the Government and for the protection of the rights of contractors in general.3

Prior to the English Construction Company case, the term protest was often used by litigants filing 

actions in the United States Court of Claims. As early as 1889 the Court recognized that a claimant had 

“protested against the contract being awarded” and “at the time the bids were opened plaintiff 

protested to the Architect against the award to any one (sic) but his associate.”4 In this particular case, 

the claimant was not arguing that the government violated certain procurement rules, but that the 

 

1 Decisions on Protests, 31 U.S.C. § 3554(a)(1).

2 Daniel I Gordon, In the Beginning: The Earliest Bid Protests Filed with the US General Accounting Office, 13 Public Procurement Law 

Review 147, 154 (2004). 3 Ibid, 155.

4 Schillinger v. United States, 24 Ct. Cl. 278 at 287 (Ct. Cl. Mar. 18, 1889).
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award violated the claimant’s patent rights. The court dismissed the claim because there was no actual 

or implied contract between the claimant and the government. 

In the English Construction Company protest, the disappointed bidder also did not have a contract 

with the government. The GAO solicitor, or general counsel, ultimately concluded that the GAO had 

the authority to decide protests filed by disappointed bidders but dismissed the protest finding no 

violation of law.5 This case marks the first time that an adjudicative body of the federal government 

exercised jurisdiction over an alleged violation of procurement rules filed by a party that did not have a 

contractual relationship with the government. Less than 2 years later GAO published its first written 

bid protest decision.6

To decide the first bid protest, the Comptroller General, determined GAO had jurisdiction by virtue of 

GAO’s authority to give advance decisions to certifying and disbursing officers on the legality of 

payments. Bid protest authority was not codified until, as part of the Debt Reduction Act of 1984, 

Congress passed the CICA. 7 Subsection D of CICA specifically provided for the Procurement Protest 

System now codified at 31 USC § 3551, et. seq. 

The Comptroller General is charged with “providing for the inexpensive and expeditious resolution of 

protests” filed at GAO and to issue final decisions within 100 days after the protest is submitted.

8 To be 

eligible for a stay of award or stay of performance, a postaward bid protests must be filed with GAO no 

later than 10 days after the date of contract award, or 5 days after the date of a required debriefing, 

whichever is later.9 GAO will consider a protest timely if it is filed within 10 days after the protestor 

knew or should have known of the basis for the protest.10 In reviewing protests of agency procurement 

decisions, GAO is limited to whether the “agency’s judgement was reasonable and consistent with the 

stated evaluation criteria and applicable procurement statutes and regulations” and whether the 

agency’s action was prejudicial to the protestor.11 Although bid protests originated at GAO, bidders 

may now file a bid protest at any or potentially all of three options: the agency, GAO, and COFC. 

The agency forum, detailed in FAR 33.103, implementing EO 12979, provides that an interested party

may file a protest with the contracting officer and request an independent review of its protest at one 

level above the contracting officer. 12 The FAR states that the “agency should provide for inexpensive, 

informal, procedurally simple, and expeditious resolution of protests.”13 Preaward protests must be 

filed before bid opening and in all other cases the protest must be filed within 10 days after the basis of 

 

5 Daniel I Gordon, In the Beginning: The Earliest Bid Protests Filed with the US General Accounting Office, 13 Public Procurement Law 

Review 147, 156 (2004). 6 Ibid, 162.

7 Pub. L. No. 98-369, Title VII, 98 Stat. 1175 (1984). 8 Decisions on Protests, 31 U.S.C. § 3554(a)(1). Congress also directed the Comptroller General utilize an express option when 

appropriate, that would resolve protests within 65 days after filing. Agencies are required to file an agency report with the relevant 

portions of the administrative record for the procurement in response to a protest within 30 days. 

9 Review of Protests; Effect on Contracts Pending Decision, 31 U.S.C. § 3553(d)(4). 

10 4 CFR § 21.2(a)(1).

11 Ostrom Painting & Sandblasting, Inc., B-285244 (Comp. Gen. Jul. 18, 2000). 12 “Interested party for the purpose of filing a protest” as defined at FAR 33.101 means “an actual or prospective offeror whose direct 

economic interest would be affected by the award of a contract or by the failure to award a contract.” The same definition is used in 

31 U.S.C. § 3551(2)(A). FAR 33.103(d)(4). 13 FAR 33.103(c). 
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a protest is known or should have been known.14 Most often this would be 10 days after the contract 

award. 

COFC was first established as the Court of Claims in 1855 and was responsible for resolving claims 

during the Civil War. COFC jurisdiction was subsequently expanded by the Tucker Act of 1887, as later 

amended in 1996 by the Administrative Disputes Resolution Act (ADRA). 15 The Tucker Act provides 

COFC jurisdiction over claims against the United States founded on, among other things, “any express 

or implied contract with the United States.” This authority was initially viewed as limited to contract 

disputes. Later the Court recognized jurisdiction over implied in-fact contracts for which the United 

States is obligated to fully and fairly consider the proposals of offerors, effectively adopting jurisdiction 

over protests. The ADRA amended the Tucker Act to provide COFC exclusive jurisdiction, resting 

jurisdiction away from the district courts, over preaward and postaward bid protests. District Court 

jurisdiction is often referred to as Scanwell jurisdiction, as it arose out of the decision of the Court of 

Appeals for the D.C. Circuit in Scanwell Laboratories v. Shaffer. Scanwell jurisdiction was based on the 

Court’s finding that the Administrative Procedures Act gave disappointed offerors standing to 

challenge contract awards.16 The exclusive jurisdiction of COFC became effective on January 1, 2001.17 

COFC requires a more formal legal process than GAO, although GAO has developed its own set of 

formal practices over the years. Protests before COFC more closely resemble litigation in the district 

courts with many of the associated rules of procedure. COFC requires protestors, for example, to be 

represented by counsel.18 Some argue that the additional procedures at COFC and the requirement for 

representation account for the fact that more than 95 percent of DoD protests are filed at GAO.19

Additional key differences between GAO and COFC include agency representation by the Department 

of Justice at COFC and the remedies that can be granted. Perhaps most significant is that COFC is 

authorized to review “any alleged violation of statute or regulation in connection with a procurement 

or a proposed procurement.”20 COFC and the United States Court of Appeals for the Federal Circuit 

have interpreted the “in connection with” phrase to be “very sweeping in scope.”21 Its review is 

therefore potentially more expansive and less predictable than GAO’s. 

Some might argue that a positive result of COFC’s broader jurisdictional scope is that the court may, 

and recently has, reviewed agency decisions related to requirements development. The injunction 

 

14 FAR 33.103(d)(4).

15 28 U.S.C. § 1491. See also what is described as the “Little Tucker Act” at 28 U.S.C. § 1346, which appears to give concurrent jurisdiction 

to contract related claims under $10,000 to both the COFC and the District Courts. However, pursuant to § 1356(A)(2) the “Little Tucker 

Act” does not apply to contracts subject to the Contracts Dispute Act found in 41 U.S.C. §§ 7104 and 7107. 16 Scanwell Laboratories v. Shaffer, 424 F.2d 859, 861-873 (D.C. Cir. 1970). 17 Pub. L. No. 104-320 §§ 12(a) and (d), 110 Stat. 3874 (1996). The ADRA provided a sunset provision which terminated the district courts 

on January 1, 2001 unless Congress acted to extend that date. Congress did not take such action. 18 See RCFC 83.1. COFC allows pro se representation of individuals or families, but corporations and partnerships must be represented by 

counsel. The Department of Justice (DoJ) represents DoD at COFC. 

19 RAND reported that from 2008-2016 11,459 protests actions were filed at GAO while only 475 were filed at COFC. Mark V. Arena et al., 

Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 35, accessed November 9, 2018, 

https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 20 There can be significant differences in the interests of DoJ and the interests of DoD in given protest. These differences manifest 

themselves in more adversarial proceeding before COFC than before GAO.Space Exploration Technologies Corps. v. US, No. 14-354C, 

Order to Grant Temporary Injunction (April 30, 2014), accessed November 26, 2018, https://ecf.cofc.uscourts.gov/cgibin/show_public_doc?2014cv0354-0-0. 21 Ibid.
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COFC issued as a result of a 2014 SpaceX protest ultimately led to mediation between the U.S .Air 

Force and SpaceX, resulting in a delay in competing space launch requirements while SpaceX was 

becoming certified for national security launches. 22 The injunction was not issued because of a violation 

of procurement laws, but because COFC found that the contract awardee’s source of supply may have 

been restricted by EO.

23 In the Palantir case, the Court ruled the U.S. Army violated a procurement 

statute by refusing to consider commercially available solutions, such as Palantir’s, in procuring a 

software solution.24 The Palantir ruling came after Palantir had unsuccessfully protested the

procurement before GAO.25 On its review, COFC set the conditions for agencies to seek broader 

competition, which should result in substantial benefits to the government, including access to better 

technology and lower prices.26 It should be noted that not all share the view that COFC’s review in 

these two cases was ideal, even though, at least in the case of SpaceX, COFC’s decision appears to have 

resulted in savings for the taxpayer and increased capability for DoD.27

According to presentations made by GAO and COFC to the Section 809 Panel, in FY 2017 there were 

2,596 bid protests filed at GAO governmentwide, with 55 percent being defense-related, and 132 bid 

protests cases were filed at COFC.

 

22 SpaceX Gets Air Force Certification to Compete for Military Launches, nbcnews.com (26 May 2015). 

https://www.nbcnews.com/science/space/spacex-gets-air-force-certification-compete-military-launches-n364986. 23 Space Exploration Technologies Corps. v. US, No. 14-354C, Order to Grant Temporary Injunction (April 30, 2014), accessed 

November 26, 2018, https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2014cv0354-0-0. 24 Palantir USG, Inc. v. US, No. 16-748C (Nov 3, 2016), accessed November 26, 2018, https://ecf.cofc.uscourts.gov/cgibin/show_public_doc?2016cv0784-113-0. 25 Ibid.

26 In March of 2017, Palantir filed a GAO protest of a similar Navy software procurement and the Navy chose to withdraw the solicitation 

and “re-examine the procurement record and its acquisition approach.” Lizette Chapman, Palantir Wins Bid Protest Against Navy Over 

Contract Bid Request, Bloomberg.com (March 28, 2017), accessed November 26, 2018, 

https://www.bloomberg.com/news/articles/2017-03-29/palantir-wins-protest-against-navy-over-contract-bid-request. 27 Those who do not share the view, believe that it is not COFC’s role to second-guess DoD’s requirements determinations but only to 

determine if DoD followed applicable procurement law and did not act arbitrarily or capriciously in acquiring the products and services 

that meet those requirements. 
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Figure 6-2. DoD Procurement Protests at GAO, FYs 1989-201628

Regarding GAO protests, Section 885 of the FY 2017 NDAA directed RAND to create a report, Assessing 

Bid Protests of the U.S. Department of Defense Procurements Identifying Issues, Trends and Drivers, which

shows that between FY 2008 and FY 2016, protesters initiated 21,186 actions at GAO.29 “Protest actions 

associated with DoD agencies accounted for roughly 60 percent of the total protest actions over this 

period.”30 The number of protests filed at GAO has risen slightly since 2007, but according to 

Figure 6-2, protest numbers are still lower today than they were in the early 1990s.

Among the 11,459 protest actions related to the 7,368 DoD procurements RAND analyzed, 26.9 percent 

were preaward protests. Among the approximately 8,376 postaward protests, DoD issued a stay 

override in only 1.2 percent of the cases.31 Of all GAO protests, 21.2 percent result in a decision by 

GAO, with only 2.6 percent of the protests being sustained.32 Approximately 38 percent of Do- related 

protests result in corrective action.33 GAO combines these two numbers into an effectiveness rate of 

 

28 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 30, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 29 The RAND study analyzed protest “actions.” Multiple protest actions may be filed related to one procurement. Mark V. Arena et al., 

Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 27-28, accessed November 9, 

2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 30 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 29-30, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 31 Ibid, 35.

32 Ibid, 37.

33 Ibid.
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41 percent and argues that because this rate has held rather steady since 2009, it is reasonable to 

conclude that claims of frivolous protests accounting for the recent increase in protests is overblown.34

With regard to the timeliness at both GAO and COFC, the RAND report included a compilation of data 

on the time it took both GAO and COFC to render decisions. 

RAND found that 50 percent of all GAO protests are resolved within 30 days and 70 percent within 

60 days. If a protest goes to a decision, however, GAO takes almost the full 100 days to either sustain or 

deny the protest.35 If DoD takes corrective action, it typically does so prior to submitting the agency 

report.36 See Figure 6-3.

GAO, as part of the Legislative Branch, is only authorized to make recommendations to the Executive 

Branch agency to remedy a violation of procurement laws or regulations.37 The executive agency has 

discretion whether it follows those recommendations, but from FY 2014 through FY 2017, only twice 

did an agency choose not to follow a GAO recommendation resulting from a sustained protest.38 Any 

of the parties to a protest may seek reconsideration of an adverse GAO decision; however, GAO’s 

decisions are not binding on the agency, so there is no path to an appellate review at a court.39

 

34 Ibid.

35 Ibid, 44.

36 Ibid.

37 31 U.S.C. § 3554(b)-(c). 38 See GAO Bid Protest Annual Report to Congress for Fiscal Years 2014-2017 available at https://www.gao.gov/legal/bidprotests/reference-materials#annual_reports. 39 4 CFR § 21.14.
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Figure 6-3. Days to Close a Protest Action at GAO, FYs 2008-201640

Once a preaward protest is filed with GAO, the contracting officer may not make a contract award for 

that procurement while the protest is pending.41 If a postaward protest is filed within a certain 

timeframe, the contracting officer must suspend contract performance while the protest is pending.42

This delay in awarding or performance of a procurement under protest is known as a CICA stay. It is 

important to note that the stay may be overridden by the head of the procuring activity based on 

certain written findings. To award a contract when a procurement is subject to a preaward protest, the 

head of the procuring activity must make a written finding that “urgent and compelling circumstances 

which significantly affect the interests of the United States will not permit waiting for the decision of 

the Comptroller General.”43 The head of the procuring activity may authorize performance of a contract 

subject to a postaward protest under the same rationale, or by finding that “performance of the contract 

is in the best interests of the United States.”44

The CICA stay does not apply to agency-level protests, but FAR 33.103 prohibits the award of a 

contract while a preaward protest is pending and requires the contracting officer to suspend 

performance of a contract while a postaward protest is pending.45 As an exception, the agency may 

determine that there are urgent and compelling reasons for making award or that it is otherwise in the 

 

40 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 44, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 41 31 U.S.C. § 3553(c)(1).

42 31 U.S.C. § 3553(d)(3). 43 31 U.S.C. § 3353(c)(2).

44 31 U.S.C. §§ 3553(d)(3)(C).

45 See FAR 33.103(f)(1) and (3).
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best interests of the government to proceed.46 Agency processes may vary in how the at least one level 

above the contracting officer standard of review is applied, but almost all agencies require that legal 

counsel assess any final decision in response to the agency protest to ensure the legal sufficiency of the 

decision, even though not required by the EO or the FAR.

The CICA stay does not apply to protests filed at COFC; instead plaintiffs (protestors) must seek a 

preliminary injunction to prevent the contract from being awarded or the contract performance from 

beginning or continuing.47 In practice, the need for a stay is often agreed to by the parties at the outset 

of the litigation and does not require a formal motion.

Regarding COFC protests, the RAND study shows that between January 2008 and May 2017protestors 

filed 475 cases related to DoD procurements.48 These bid protests make up approximately 20 percent of 

the court’s docket.49 Of the 475 case filed, only 9 percent were sustained, and RAND found that the 

sustain rate at COFC has been falling since 2008.50 As RAND points out, this situation could suggest 

that “protestors are being less selective in the cases they bring to COFC.”51 The parties appealed to the 

Federal Circuit in 12 percent of the cases.52

Timelines at COFC have been improving over the last few years, with the court issuing a decision 

within 133 days, on average, of the protester filing the complaint.53 Yet in the 10-year period, COFC 

took more than 450 days to close approximately 20 cases.54 See Figure 6-4. 

The time it takes the government to file the complete administrative record with the Court can drive 

the timeline at COFC. The government took an average of 37 days to file the administrative record with 

COFC, but in at least one case, it took more than 350 days to file the complete administrative record.55

Some of COFC’s extended timelines can be linked directly to the agency’s inability to provide the 

administrative record in a timely fashion.

 

46 FAR 33.103(F)(1)

47 Michael J. Shcaengold, T. Michael Guiffre Elizabeth M. Gill, Choice of Forum for Federal Government Contract Bid Protests, 18 Fed. 

Circuit B.J. 243, 310-311 (2009). 48 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 47, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 49 Ibid, 48.

50 Ibid, 55. In FY 2008 almost 20 percent of the cases heard by COFC were sustained, but in FYs 2012 and 2014-2016, 6 percent or less of 

protests were sustained. In 2013 there as a spike up to almost 15 percent, but the overall trend is clearly down. 51 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 54, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 52 Ibid. 53 Ibid, 57.

54 Ibid, 58.

55 Ibid, 58.
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Figure 6-4. Number of Days to Close Cases with the COFC, CYs 2008-201756

Discussion

Agency attorneys expressed concern to the Section 809 Panel over the opportunity for a protestor to 

litigate a protest at GAO and then relitigate that protest at COFC. There is nothing to prevent a 

protestor from filing a protest with GAO, getting an unfavorable result, and filing the same or a refined 

version of protest at COFC with the expectation of a different result. The circumstances that create this 

opportunity for two-bites include GAO being a legislative body, not a court, and a lack of timeliness 

rules for filing postaward protests at COFC other than the 6-year Tucker Act statute of limitations.57

RAND concluded that an increase in the number of cases filed at COFC that reference GAO 

“suggests—but does not prove—that a large fraction of cases at COFC were filed previously at GAO, 

where the protester did not achieve the outcome it wanted.”58 The data RAND relies on shows an 

increase in the percentage of cases filed at COFC that referenced GAO from less than 20 percent in 2008 

to almost 70 percent in 2016.59 A reference to GAO in a bid protest filed at COFC, however, does not 

mean the protest was previously adjudicated at GAO. It is just as likely that cases filed at COFC more 

often references previous GAO opinion(s) in support of the protestor’s position as GAO has developed 

a robust body of published opinions that COFC might find persuasive. 

 

56 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 58, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 57 Blue and Gold Fleet L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007) effectively applied GAO pre-award protest timeliness 

rules to pre-award protests filed at COFC. COFC also applies the doctrine of latches and dismisses postaward protests that are filed so 

long after an award that the Government would be prejudiced in mounting a defense. 

58 Mark V. Arena et al., Assessing Bid Protests of U.S. Department of Defense Procurements, RAND Corporation, December 2017, 53, 

accessed November 9, 2018, https://www.rand.org/content/dam/rand/pubs/research_reports/RR2300/RR2356/RAND_RR2356.pdf. 59 Ibid.
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Because GAO opinions are nonbinding recommendations, they cannot be appealed directly to a court 

of law, and COFC is not obligated to follow or provide any deference to GAO opinions.

60 COFC 

requires the agency to produce a more substantial record, and will review the agency’s actions and not 

the propriety of GAO’s previous analysis and recommendation. For years DoD has proposed 

legislation that would eliminate the opportunity for protestors to relitigate at COFC by applying 

timeliness rules for filing bid protests at COFC patterned after those established for GAO.61 

Section 822 of the FY 2019 NDAA directed DoD to spend 18 months studying the number of protests 

filed at both GAO and COFC and the details associated with those cases to include the extent of the 

procurement delay resulting from each protest. The DoD legislative proposal that resulted in this 

legislation lists a number of cases for which a protest was adjudicated by GAO, then the protestor filed 

suit at COFC delaying each procurement by between 12 months and nearly 24 months.62 In each case, 

the eventual outcome after months of litigation was the same as the outcome determined by GAO.63

This recommendation is patterned after the DoD proposal, which was not intended to result in a study. 

The two-bite process is not expeditious, is costly to all parties involved, and in each of the cases

presented in the DoD proposal provided no added value to the system by way of additional 

accountability.

Conclusions

An 18-month study is unnecessary to understand that expeditious resolution of a protest cannot 

happen at GAO if that resolution can be relitigated at a separate forum that is not obligated to give any 

deference to GAO’s findings. Applying timeliness rules to COFC for filing of DoD postaward protests 

that mirror those that apply to GAO and codifying the preaward timeliness rules currently based on 

case law, would require protestors to file protests at COFC in a timelier manner and ensure that GAO 

remains available as an expeditious means of resolving protests. This recommendation would expand 

on the existing statutory mandate for COFC to “give due regard to the interests of national security and 

need for expeditious resolution” of actions.64 In addition, applying GAO’s protest resolution timeliness 

rules to the Court for rendering judgement on a procurement related action, will ensure the Court 

meets its mandate for expeditious resolution, but only when the Court has ordered a procurement be 

stayed pending resolution of the action. This approach allows the Court to focus resources on resolving 

those cases for which performance has been stayed while allowing for longer timelines for cases not 

subject to an ordered delay. 

Protestors would be able to make the choice of protest forum based on the perceived advantages and 

disadvantages of the different options, and nothing would prevent a protestor from first filing a protest 

with the agency. The lack of the option to appeal a GAO decision to a court is a consideration that may 

influence certain protestors to file at COFC rather than GAO, but most of the stakeholders the Section 

809 Panel heard from agreed that the vast majority of protestors would choose the more affordable, 

 

60 See Raymond M. Saunders and Patrick Butler, Article, A Timely Reform: Impose Timeliness Rules for Filing Bid Protests at the Court of 

Federal Claims, 39 Pub. Cont. L.J. 539, 553 (Spring 2010). 61 DoD Legislative Proposal, Sec. ___. Timeliness Rules for Filing Bid Protests at the United States Court of Federal Claims, April 3, 2018, 

accessed November 27, 2018, http://ogc.osd.mil/olc/docs/3April2018.pdf, filename: Bid Protest.pdf. 62 Ibid, 4. 

63 Ibid, 4-5. 64 28 U.S.C. § 1491(b)(3). 
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predictable, and efficient GAO forum. This recommendation protects the rights of protestors to choose 

the forum that will hear their protest, eliminates the potential for extraordinary delays that result from 

relitigating protests at separate forums, and ensures GAO achieves its statutory purpose. 

Implementation

Legislative Branch

§ Amend 28 U.S.C. § 1491(b)(3) to place protest filing timeliness rules on COFC that mirror those 

established for filing protests at GAO and prevent procurements protested at GAO to later be 

the subject of an action at the COFC.

§ Amend 31 U.S.C. § 3556 to ensure protests may be filed at either GAO or COFC, but not both. 

Executive Branch

§ There are no regulatory changes required for this recommendation.

Implications for Other Agencies

§ These changes only apply to DoD protests, but could be expanded to cover protests of national 

security related procurements at federal government agencies.