Sixth Edition

1996 Bid Protests at G

A Descriptive Gu

GAO/OGC-96-24

The laws and regulations that govern cont

the federal government are designed to en

federal procurements are conducted fairly 

whenever possible, in a way that maximize

competition. On occasion, however, bidde

interested in government procurements m

reason to believe that a contract has been 

to be awarded improperly or illegally, or th

have been unfairly denied a contract or an

opportunity to compete for a contract. A m

avenue of relief for those concerned about 

propriety of an award has been the Genera

Accounting Office, which for almost 75 ye

provided an objective, independent, and im

forum for the resolution of disputes conce

awards of federal contracts.

Over the years, GAO has developed a subs

of law and standard procedures for consid

protests. This is the sixth edition of Bid Pr

GAO: A Descriptive Guide, prepared by th

the General Counsel to aid those intereste

bid protest process. We issued the first edi

booklet in 1975 to facilitate greater public 

with the bid protest process at GAO and w

revised it over the years to reflect changes 

protest procedures. This edition incorpora

made to our Bid Protest Regulations, effec

August 8, 1996, to implement the Federal A

Reform Act of 1996 and the Information Te

Management Reform Act of 1996, as includ

National Defense Authorization Act for Fis

1996.

We have improved this edition of the book

providing additional and updated practice 

assist parties participating in a bid protest 

also have updated the appendixes which c

revised sample protective order and revise

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applications for access to material under a 

order.

Robert P. Murphy

General Counsel

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Introduction 

The Bid Protest

Process

Background 

Overview of the Bid Protest Process 

Filing a Protest 

Initial Steps After a Protest Is Filed 

Ex Parte Communications 

Hearings 

Decision Timetable 

Protest Disposition 

Judicial Proceedings 

Requests for Reconsideration 

Bid Protest

Regulations

Appendixes Appendix I: Sample Protective Order 

Appendix II: Sample Applications for Acce

to Material Under a Protective Order

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Background For almost 75 years, GAO has provided an 

independent, and impartial forum for the r

disputes concerning the awards of federal 

Over the years, the decisions of the Compt

General of the United States, the head of G

protest cases have resulted in a uniform bo

applicable to the procurement process tha

upon by the Congress, the courts, contract

agencies, and the public. Although protest

represented by counsel, filing a bid protes

is easy and inexpensive and does not requ

services of an attorney. In addition, matter

usually be resolved more quickly by protes

with GAO than by court litigation.

This booklet is an informal, practical guide 

protest process at GAO; however, it is not 

The legal rules governing this process are 

GAO’s Bid Protest Regulations. Since 1985

had detailed regulations to inform proteste

rules concerning where and how to file a p

what to expect in the way of subsequent a

the time frames established for completion 

actions. These regulations were promulgat

implement the Competition in Contracting 

and were revised to implement the require

Information Technology Management Refo

1996, as included in the National Defense

Authorization Act for Fiscal Year 1996, tha

bid protest decisions within 100 calendar d

new protest filed with GAO on or after Au

(In these regulations, all “days” are calend

The revised regulations will appear in Title 

Code of Federal Regulations (C.F.R.), Part 

reproduced in this booklet for ease of refe

GAO changes its regulations from time to 

because of changes in applicable statutes, 

court decision, or when experience dictate

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modification is appropriate. These change

published in the Federal Register, and then

incorporated into the Code of Federal Reg

which is published annually and reflects th

or additions to the regulations that were p

the Federal Register during the preceding 

Because the regulations are published in th

Register, protesters and other parties are d

have “constructive knowledge” of them, m

they are expected to comply with the regu

even if they have never actually read the re

In deciding bid protests, GAO considers w

federal agencies have complied with statu

regulations controlling government procur

The main statutes controlling federal proc

are the Armed Services Procurement Act o

the Federal Property and Administrative S

of 1949, as amended, particularly by the Co

in Contracting Act of 1984, the Federal Ac

Streamlining Act of 1994, and the Federal A

Reform Act of 1996 and the Information Te

Management Reform Act of 1996, as includ

National Defense Authorization Act for Fis

1996. These statutes are found in the Unite

Code, titles 10 and 41, respectively, and ar

implemented by the Federal Acquisition R

(FAR) and individual agency regulations. G

Protest Regulations govern GAO’s handlin

protests and impose certain requirements 

contracting agencies, protesters, and other

participate in the bid protest process at GA

Overview of the

Bid Protest

Process

The bid protest process at GAO begins wit

of a written protest. Unless the protest is d

because it is procedurally or substantively 

(e.g., the protest is untimely or the protest 

clearly state legally sufficient grounds of p

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contracting agency is required to file with 

agency report responding to the protest an

provide a copy of that report to the protes

protester then has an opportunity to file w

comments on the report. Other parties ma

permitted to intervene, which means that t

also receive a copy of the report and will b

to file written comments on the report.

During the course of a GAO protest, as app

GAO may schedule status or other informa

conferences to resolve procedural matters 

obtain information material to the disposit

protest. GAO also may find that a hearing 

to resolve factual and legal issues raised in 

protest. If it decides to hold a hearing, GAO 

usually conduct a pre-hearing conference 

the issues that will be considered at the he

identify the witnesses who will testify at th

and to settle procedural questions. After th

all parties will be allowed to submit writte

comments on the hearing.

After the record is complete, GAO will con

facts and legal issues raised and will issue 

a copy of which will be sent to all parties p

in the protest. GAO may sustain the protes

find that the agency violated a procuremen

regulation and that the violation prejudice

protester), in which case GAO will recomm

appropriate corrective action. Alternativel

deny the protest or may dismiss the protes

reviewing the matter. GAO will issue its de

later than 100 days from the date the prote

filed. The exact date on which GAO issues 

decision depends on the urgency of the pr

the complexity of the factual and legal issu

the protest, and GAO’s work load.

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Filing a Protest

Who May Protest By law, a GAO protest must be filed by an 

party,” which means an actual or prospect

or offeror with a direct economic interest 

procurement. 4 C.F.R. § 21.0(a). In challen

evaluation of proposals and the award of c

this generally means an offeror that would 

be in line for award if the protest were sus

Although many parties retain an attorney i

benefit from the attorney’s familiarity with 

protest process and with procurement stat

regulations, an attorney is not required for 

of filing a protest. However, where the rec

includes another company’s proprietary in

or the agency’s source-selection-sensitive

information, only attorneys (and then only 

attorneys are admitted under a protective 

discussed below) will be allowed to see th

information.

What to Protest Although most protests challenge the acce

rejection of a bid or proposal and the awar

proposed award of a contract, GAO consid

protests of defective solicitations (e.g., alle

restrictive specifications, omission of a req

provision, and ambiguous or indefinite eva

factors), as well as certain other procurem

(e.g., the cancellation of a solicitation). Th

termination of a contract may be protested 

protest alleges that the termination was ba

improprieties in the award of the contract

§ 21.1(a). Where the agency involved has a

writing, GAO will consider protests concer

(1) awards of subcontracts by or for a fede

(2) sales by a federal agency, and (3) procu

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actions by government entities which do n

within the strict definition of federal agenc

4 C.F.R. § 21.0(c). 4 C.F.R. § 21.13(a).

There are some matters that cannot be pro

GAO. The most common grounds for dism

protest in whole or in part are set forth in 

§ 21.5.

Preparation of a

Protest

There is no prescribed form for filing a pro

except that the protest must be in writing. 

§ 21.1(b). Protests of different procuremen

separately filed. 4 C.F.R. § 21.1(f).

GAO does not require formal briefs or othe

forms of pleadings. However, at a minimum

shall:

(1) Include the name, address, and telepho

facsimile (fax) numbers of the protester (o

representative, if any);

(2) Be signed by the protester or its repres

(3) Identify the contracting agency and the

solicitation and/or contract number;

(4) Set forth a detailed statement of the leg

factual grounds of protest, including copie

relevant documents;

(5) Set forth all information establishing th

protester is an interested party for the pur

filing a protest;

(6) Set forth all information establishing th

timeliness of the protest;

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(7) Specifically request a ruling by the Com

General of the United States; and

(8) State the form of relief requested. 4 C.F

§ 21.1(c).

In addition, a protest may include a reques

protective order, specific documents relev

protest, and a hearing. 4 C.F.R. § 21.1(d). I

regard, protesters must explain the relevan

requested documents to their protest grou

reason a hearing is necessary to resolve th

Id.

The protest document must be clearly labe

contains information which the protester b

proprietary, confidential, or otherwise not 

to the public. In those cases, within 1 day a

filing of the unredacted protest with GAO, 

protester must provide to GAO and the co

agency a redacted version of the protest w

such information. 4 C.F.R. § 21.1(g).

A party may request that GAO decide a pro

an express option schedule or other flexib

alternative procedures, including establish

accelerated schedule and/or issuing a sum

decision. 4 C.F.R. § 21.10(a), (e).

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When to Protest The regulations set forth the timeliness req

for filing protests at GAO. 4 C.F.R. § 21.2. B

protests may delay the procurement of nee

and services, GAO, except under limited

circumstances, strictly enforces these time

requirements.

Protests alleging improprieties in a solicita

be filed prior to bid opening or the time se

of initial proposals if the improprieties we

prior to that time. 4 C.F.R. § 21.2(a)(1). A s

defect that was not apparent before that ti

protested not later than 10 days after the d

became apparent. In negotiated procurem

alleged impropriety did not exist in the ini

solicitation but was later incorporated into 

solicitation by an amendment, a protest ba

impropriety must be filed before the next c

established for submitting proposals. Id.

In all other cases, protests must be filed no

10 days after the protester knew or should 

known the basis of protest (whichever is e

the exception of protests challenging a pro

conducted on the basis of competitive pro

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under which a debriefing is “requested and

requested, is required” (that is, a statutoril

debriefing). In these cases, with respect to 

basis which was known or should have be

before the statutorily required debriefing, 

protester must not file its initial protest be

debriefing date offered to the protester, bu

its initial protest not later than 10 days afte

on which the debriefing was held. 4 C.F.R.

§ 21.2(a)(2).

The purpose of the exception to the timeli

for negotiated procurements is to encoura

to seek, and contracting agencies to give, e

meaningful debriefings prior to the vendor 

whether or not to file a protest. Thus, in

procurements conducted on the basis of c

proposals in which a statutorily required d

held, that is, where a debriefing is requeste

when requested, is required, a protester w

have up to 10 days after the debriefing to f

protest.

Special timeliness rules govern protests in

with the contracting agency. In those case

protest to GAO must be filed not later than 

after the protester learned of “initial adver

action.” 4 C.F.R. § 21.2(a)(3). Deciding wh

agency action occurs is straightforward w

protester receives oral or written notice th

agency is denying the agency-level protest

should keep in mind, however, that GAO v

action that makes clear that the agency is 

agency-level protest as adverse agency act

Examples of adverse agency action includ

agency’s proceeding with bid opening or th

of proposals, the rejection of a bid or prop

award of a contract despite the agency-lev

Firms which have filed an agency-level pro

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are considering filing a subsequent protest 

should be alert to any possible agency acti

could be viewed as indicating that the agen

denying the agency-level protest.

Agency-level protests must be filed in acco

with GAO’s timeliness rules at 4 C.F.R.

§ 21.2(a)(1) and (a)(2), unless the agency i

more stringent time for filing, in which cas

agency’s time for filing will control. Thus, 

firm files a protest with GAO within 10 day

adverse agency action, GAO will consider 

untimely if the agency-level protest was no

filed under GAO’s timeliness rules or unde

agency’s rules if those rules are stricter. 4 

§ 21.2(a)(3). For example, if a firm waits u

bid opening to file an agency-level protest 

apparent solicitation impropriety, even if t

subsequent protest to GAO is filed within 

the firm’s learning that the agency has den

agency-level protest, GAO will not conside

of that impropriety since the agency-level 

the alleged impropriety was not filed prior 

opening.

GAO may consider an untimely protest wh

exceptional circumstances beyond the pro

control caused the delay in filing the prote

the protest presents novel or significant is

interest to the procurement community. 4 

§ 21.2(c). Protesters should be aware, how

GAO will invoke these exceptions sparingl

Finally, GAO recognizes that the North Am

Trade Agreement (NAFTA) contains a 10-w

timeliness requirement which is inconsiste

GAO’s timeliness rules. However, because 

flexibility of GAO’s timeliness rules, GAO 

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NAFTA protester all treaty rights for purpo

timely filing of a protest.

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Where to Send a

Protest

Protests must be addressed to the General 

General Accounting Office, 441 G St., N.W

Washington, DC 20548, Attention: Procure

Control Group. 4 C.F.R. § 21.1(b). GAO’s o

are from 8:30 a.m. to 5:30 p.m., eastern tim

through Friday.

Protests may be filed by hand delivery, ma

commercial carrier, or fax. 4 C.F.R. § 21.0(

filed by hand delivery or commercial carri

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delivered to the window located in the G S

in GAO’s main building at the above-refere

address. Protesters filing their protests by 

verify GAO’s fax number prior to transmis

current official bid protest fax number is

(202) 512-9749. Fax users should take into 

the risk that GAO’s receiving fax machine 

busy, particularly near the end of a busine

will time/date stamp a fax transmission as 

that the last page is received, which may a

timeliness of the entire submission. Additi

recorded information concerning the filing 

at GAO may be obtained by calling GAO’s

Procurement Law Control Group at (202) 

A copy of the protest, including all attachm

be filed with the individual or location iden

that purpose in a solicitation, or with the c

officer, within 1 day after the protest is file

GAO. 4 C.F.R. § 21.1(e).

Initial Steps After

a Protest Is Filed

Acknowledgment of

a Protest

Upon receipt of a protest, GAO generally s

protester a written notice acknowledging r

the protest. 4 C.F.R. § 21.3(a). In appropria

GAO may issue a protective order package

schedule, and/or a status conference notic

simultaneously with the acknowledgment 

only instance in which an acknowledgmen

not sent is where the protest is summarily 

in which case a notice of dismissal will be 

The acknowledgment notice includes impo

information. First, it provides the file num

which GAO identifies the protest. That num

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consists of a letter followed by six digits (e

B-123456). Second, the notice contains the 

which the contracting agency’s response t

protest, the agency report, is due. The noti

that GAO will assume that the protester re

report on that date and may dismiss the pr

protester’s written comments in response 

report are not received by GAO within 10 d

date. Third, the notice contains the date by 

written decision will be issued by GAO.

Finally, the acknowledgment notice identi

GAO attorney or the GAO contact person h

protest and that individual’s telephone num

individual is the GAO employee who shoul

be contacted with any procedural question

protest. Inquiries about the status of the ca

directed to GAO’s bid protest status line at

(202) 512-5436. This telephone number and 

previously referenced official fax number 

on the notice.

Confirmation of

Report Requirement

Within 1 day of receipt of the protest, GAO 

telephone the contracting agency to advise 

protest has been filed. 4 C.F.R. § 21.3(a). T

telephone call is important because it is th

notice that may trigger a statutory stay in t

or of performance of a contract pending G

decision. The call also triggers the agency 

requirement. For this reason, protesters sh

their protests sufficiently in advance of the 

of the statutory period after award or after 

statutorily required debriefing to allow GA

notify the agency that a protest has been fi

purposes of triggering the statutory stay. G

up the telephone notice with a written con

of report requirement which includes esse

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same information provided to the proteste

acknowledgment notice.

Intervenors Immediately after receiving notice of the p

GAO, the contracting agency must give no

protest to the contractor if an award has b

or, if no award has been made, the agency 

all bidders or offerors which have a reason

chance of receiving an award. GAO may p

firms to participate in the protest as “inter

4 C.F.R. § 21.0(b). If the award has been m

permits only the awardee to intervene. If t

has not been made, firms wishing to interv

so advise GAO and the other parties, and t

GAO to learn whether they will be permitt

intervene. The notice of intervention can b

letter which includes the name, address, a

telephone and fax numbers of the interven

representative, if any, and which advises G

other parties of the intervenor’s status.

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Summary Dismissal If a protest is summarily dismissed, that is

dismisses the protest on jurisdictional or p

grounds, GAO will not review the merits o

protest by requesting an agency report. 4 C

§ 21.5. For example, if the protest is untim

face or if it raises issues that GAO does no

(such as the awardee’s business size statu

dismiss it without requiring the contractin

submit a report. GAO may also summarily 

individual grounds of protest. Id. For exam

protest alleges that a solicitation uses over

restrictive technical specifications and use

incorrect definition of a small business, GA

dismiss the latter ground (which is for con

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by the Small Business Administration, not 

may request an agency report on the rema

ground.

As a general rule, GAO will dismiss a prote

to set forth a detailed statement of the lega

factual grounds of protest or that fails to c

legally sufficient grounds of protest. 4 C.F

citing 4 C.F.R. § 21.1(c)(4) and 4 C.F.R. § 2

respectively.

Once the protest is received, the contracti

and/or an intervenor may request that GAO 

dismiss the protest or some of its grounds

§ 21.3(b). Where summary dismissal may b

appropriate, the request for dismissal shou

as soon as practicable after the protest is f

request should be in writing and sent to all 

Unless it is clear that dismissal is appropri

will generally permit the protester to file a 

response to the dismissal request. GAO wi

address the dismissal request. If GAO gran

request, either in whole or in part, GAO wi

require the agency to prepare a report in r

the protest or in response to those ground

which were dismissed.

Protective Orders If the record in a protest contains “protect

information, that is, a company’s proprieta

confidential data or the agency’s

source-selection-sensitive information, tha

information cannot be made public. In ord

limited access to protected information re

protest, GAO may issue a protective order

§ 21.4. The protective order strictly contro

access to protected material and how that 

labeled, distributed, stored, and disposed o

conclusion of the protest. A protective ord

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which includes the protective order and th

application(s) for access to material under 

protective order, generally will be issued s

protest is filed, but in appropriate cases, m

issued simultaneously with the acknowled

notice.

Only individuals who apply to GAO, and w

applications are approved by GAO, will be 

access to protected information. Those ind

must be attorneys or consultants retained 

attorneys; the attorneys may be outside co

in-house counsel. The applicants need to s

they are not involved in competitive decisi

for any company that could gain a compet

advantage from access to protected inform

that there will be no significant risk of inad

disclosure of such information. 4 C.F.R. § 

GAO has issued a number of decisions wh

matters related to the admission of applica

protective order. Individuals permitted acc

protected information are not allowed to d

information to others. This means, for exa

protester’s attorney permitted access to pr

information under a protective order is pro

from revealing such information to the clie

may impose sanctions on any individual w

the terms of a protective order. 4 C.F.R. § 

Because the information released under a 

order is not GAO’s, but rather the contract

agency’s or one of the private parties, GAO 

these parties to carefully review applicatio

access to material under a protective orde

call to GAO’s attention any possible violati

protective order). If no party objects to an 

application, GAO will generally admit the a

under the protective order. It is important 

objections to an individual’s application be 

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raised. By the end of the second day after 

the application, the objecting party must a

and the other parties that there is an objec

applicant’s admission. 4 C.F.R. § 21.4(c). T

attorney will generally permit the objectin

submit the specific objection, in writing, th

GAO will promptly address any objections

the period for filing an objection has passe

may withhold its ruling on an application (

revoke an admission) if information come

which indicates that the applicant does no

criteria for admission.

A sample protective order and sample app

access to material under a protective orde

outside counsel, in-house counsel, and con

retained by counsel are reproduced in the 

to this booklet. These sample documents, 

provided in this booklet for informational 

only, have recently been revised. More spe

under paragraph 1 of the protective order, 

protective order issued for an initial prote

automatically extended by the terms of the 

cover all proceedings associated with the i

protest, including supplemental/amended 

requests for reconsideration, and claims fo

Under paragraph 7 of the protective order

expressly authorizes a party admitted und

protective order to retain a single copy of 

decision or letter issued by GAO, subject i

to the terms of the order (except those ter

regarding the return or destruction of prot

material). Finally, in paragraph 7 of the ap

for access to material under a protective o

both outside counsel and in-house counse

requires applicants to disclose those instan

the last 5 years (as opposed to in perpetuit

they have been denied admission to a prot

order, or had admission revoked, or been f

Page 24 GAO/OGC-96-24 Bid Pro
have violated a protective order issued by 

an administrative or judicial tribunal. (No 

revisions were made to the application for 

material under a protective order for cons

sample documents also reflect minor langu

revisions and are subject to further change

Any violation of the terms of a protective o

result in the imposition of such sanctions a

deems appropriate, including but not limit

referral of the violation to appropriate bar

associations or other disciplinary bodies, a

restricting the individual’s practice before 

4 C.F.R. § 21.4(d).

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Agency Report Within 30 days after an agency receives tel

notice of a protest from GAO, the agency i

to provide GAO, the protester, and any int

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complete written report responding to the 

including all relevant documents, or portio

documents, and an explanation of the agen

position. 4 C.F.R. § 21.3(c). The report gen

includes a statement of the relevant facts (

estimate of the contract value) signed by t

contracting officer, a memorandum of law 

the agency’s position in terms of procurem

and a list and a copy of all relevant docum

portions of documents, not previously furn

4 C.F.R. § 21.3(d).

GAO encourages agencies to voluntarily re

parties documents which are relevant to th

prior to the filing of the agency report. Doc

provided to the parties prior to the filing o

report or documents which are otherwise 

available to the parties, for example, by all

parties to review documents on site at the 

prior to the filing of the report, need not b

in the copy of the report provided to the p

4 C.F.R. § 21.3(c).

In addition, so that GAO may resolve any d

disputes prior to the filing of the agency re

requires that at least 5 days prior to the fili

report, in cases in which the protester has 

in its protest or shortly thereafter specific 

material to the disposition of the protest, t

agency prepare a list of those documents, 

of documents, which it has previously rele

intends to produce in its report, and of the 

which it intends to withhold and the reaso

proposed withholding. Id. The list must be 

to all parties and to GAO. Objections to th

the agency’s proposed disclosure or nondi

documents must be filed with GAO and all 

parties within 2 days of receiving the list. I

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The agency may omit documents, or portio

documents, from the copy of the report pr

the parties if the omitted information is pr

a party receiving the report is not represen

counsel admitted under a protective order

§ 21.3(e). Where the protester is proceedin

counsel admitted under a protective order 

documents are withheld, it is important th

agency provide the protester with informa

sufficient to clearly inform the protester o

agency’s position, so that the protester ma

intelligently on the report.

Occasionally, the agency may be aware of 

existence of relevant documents that only 

protester possesses. In appropriate cases, 

may request that the protester produce tho

documents. 4 C.F.R. § 21.3(d). If GAO agre

documents are relevant, it may ask the pro

provide a copy of the documents to GAO a

other parties, subject to the terms of any p

order.

Additional

Document Requests

If a protester learns of the existence or rel

additional documents that it believes GAO 

consider in deciding the protest, it may req

production of those documents by filing a

supplemental document request. 4 C.F.R. § 

Typically, this arises where the protester, i

the agency report, sees references to docu

the agency relies on in support of its positi

not produced. A protester seeking the prod

additional documents should submit a wri

for those documents to GAO and the other 

within 2 days after the existence or relevan

documents is known or should have been 

whichever is earlier. Id. The agency should 

the request not later than 2 days after rece

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request by either producing the document

portions of documents, or explaining why 

documents are not being produced. Id.

Comments on the

Agency Report

The protester and any intervenors may file 

comments on the agency report. 4 C.F.R. § 

Comments generally are due at GAO withi

after receipt of the report. Id. Unless other

advised by the protester, GAO will assume 

protester received the report not later than 

date specified in the acknowledgment noti

furnished by GAO. Id. A copy of the comm

be furnished to each of the other parties n

the day after the comments are received a

If the contracting agency produces withhe

documents at the direction of GAO after th

has been submitted, comments will be due 

original 10-day comment filing period, unle

extends this period. 4 C.F.R. § 21.3(h).

Failure of the protester to file comments, t

writing that the case be decided on the exi

written record, or to request an extension 

within the 10-day period will result in dism

protest. 4 C.F.R. § 21.3(i).

Page 31 GAO/OGC-96-24 Bid Pro
Ex Parte

Communications

Parties should not attempt to engage in

ex parte communications with the GAO at

assigned to the protest, or with any other G

employee. An ex parte communication ref

oral or written communication with a GAO 

which excludes one or more parties to a p

about the merits of the protest, or about si

Page 32 GAO/OGC-96-24 Bid Pro
issues which might affect the outcome of t

Although it may be necessary during the p

to clarify a fact in the record or to explain 

detail a party’s position in the case, GAO w

entertain, and no one may submit to GAO, 

record, any evidence, explanation, analysi

whether written or oral, regarding any sub

matter affecting the disposition of the prot

it is necessary to discuss any substantive i

GAO, a telephone conference should be re

copy of all written submissions to GAO, re

where necessary, should be provided to al

the protest.

Hearings At the request of a party or on its own initi

may conduct a hearing in person or by tele

where it concludes that the protest cannot 

be resolved on the written record alone. 4 

§ 21.7(a), (c).

Because hearings increase the costs and b

protests, GAO holds hearings only when n

request for a hearing should explain why a 

necessary to resolve the protest, and point 

example, factual and legal questions that G

consider in order to decide the protest. 4 C

§§ 21.1(d)(3), 21.7(a). GAO has issued a nu

decisions which discuss reasons for holdin

While the regulations do not establish a de

requesting a hearing, such a request should 

submitted as early as possible in the prote

in order to avoid unnecessary delays and d

Parties should also be aware that GAO ma

shortly after a protest is filed whether the 

in which a hearing appears likely to be app

On the other hand, the appropriateness of 

often is not clear until after the contractin

has filed its report and, in many cases, is n

Page 33 GAO/OGC-96-24 Bid Pro
until after the protester has submitted its c

on the report. GAO may decide at these lat

that a hearing is necessary to resolve the p

In cases where GAO decides to hold a hea

generally conduct a pre-hearing conferenc

parties. 4 C.F.R. § 21.7(b). The purpose of 

conference is to review the scope of the he

identify the appropriate witnesses and the

availability, to establish the date and locat

hearing, and to discuss other logistical ma

cases where GAO determines that only som

protest issues require a hearing, it will gen

the hearing to those issues. The GAO attor

handling the protest will conduct both the 

conference and the hearing. The format of 

varies from formal (direct- and cross-exam

witnesses conducted by counsel for the pa

informal (a discussion of the issues by cou

others). For this reason, the pre-hearing co

usually the best opportunity to clarify how 

attorney expects to conduct the hearing, a

raise any other questions about the hearin

A GAO hearing is, in principle, open to the 

practice, however, protest hearings often i

protected information. As a result, most he

closed except to agency personnel and tho

individuals admitted under the protective 

4 C.F.R. § 21.7(d).

At least 1 day prior to the hearing, parties 

GAO of those individuals expected to atten

hearing so that these individuals may gain 

the GAO building where the hearing room 

The GAO hearing room is equipped with v

cameras and microphones which automati

record the proceedings. That system produ

Page 34 GAO/OGC-96-24 Bid Pro
transcript, a copy of which is provided to t

at no charge at the conclusion of the heari

addition, parties may wish to have a court 

attend the hearing to prepare a written tra

request to that effect should be presented 

day of the hearing to the GAO attorney han

protest. Such a request will usually be gran

as all parties have access to a written tran

If a hearing is held, all parties, including th

will be permitted to file written comments 

hearing. 4 C.F.R. § 21.7(g). Those commen

5 days after the hearing ends, unless GAO 

different date. Id. If GAO decides to hold a 

before the receipt of comments on the age

GAO may direct the private parties not to 

separate comments on the report, but to c

their views on the report with their comme

hearing. Id.

Decision

Timetable

Once the record is complete, GAO will con

protest and decide the case through a writ

decision issued by the Comptroller Genera

latest, the decision will be issued 100 days 

protest is filed, unless GAO decides the ca

the 65-day express option schedule. 4 C.F.

(b). If a protester has filed a timely supple

timely amended protest, GAO will endeavo

the supplemental/amended protest within 

time frame for a decision on the initial pro

4 C.F.R. § 21.9(c). If that is not feasible, GA

consider using the express option schedul

accelerated schedule for the resolution of 

supplemental/amended protest. Id.; 4 C.F.R

§ 21.10(e).

Page 35 GAO/OGC-96-24 Bid Pro
Express Options GAO may decide at the request of a party o

own initiative that a protest can be resolve

expedited schedule, referred to as the “exp

option.” 4 C.F.R. § 21.10(a). A party reques

GAO decide the case on this basis should s

written request to that effect not later than 

after the protest is filed. 4 C.F.R. § 21.10(c

Under the express option schedule, the ag

is due within 20 days after the contracting 

receives notice from GAO that the express 

be used. 4 C.F.R. § 21.10(d)(1). Comments 

report generally are due within 5 days afte

the report. 4 C.F.R. § 21.10(d)(2). If a heari

needed, GAO generally will not request sep

comments on the agency report; rather, GA

require that consolidated comments on the 

hearing be filed within 5 days after the hea

unless GAO sets a different date. 4 C.F.R.

§ 21.10(d)(3). Under the express option sc

GAO’s decision will be issued not later tha

after the protest is filed. 4 C.F.R. §§ 21.9(b

GAO may decide at any time that the expr

schedule is no longer appropriate, and ma

different schedule for the protest, which w

exceed the time frame (100 days) for decid

non-express option case.

Flexible Alternative

Procedures

Notwithstanding any other provision in the

regulations, at the request of a party or on 

initiative, GAO may use flexible alternative

procedures, including, for example, establ

accelerated schedule and/or issuing a sum

decision, to resolve any protest. 4 C.F.R. § 

This provision is intended to provide a flex

accelerated protest resolution procedure a

which will minimize disruptions to the pro

cycle. In addition, GAO is receptive to usin

Page 36 GAO/OGC-96-24 Bid Pro
alternative dispute resolution-type proced

before a protest is filed or during the pend

protest to resolve appropriate matters.

Status and Other

Types of Informal

Conferences

To facilitate the expeditious development 

resolution of a protest, GAO will conduct s

other types of informal conferences, by tel

in person, with all parties participating in a 

4 C.F.R. § 21.10(f). Such conferences may 

any time during the bid protest process an

tailored to the circumstances of a particul

example, status and other types of informa

conferences are beneficial for resolving pr

order admission objections, document dis

summary dismissal requests; for discussin

related to hearings; and for obtaining answ

questions which are relevant and material 

disposition of a protest.

Protest

Disposition

GAO will either dismiss, deny, or sustain a 

GAO generally sustains protests where it d

that the contracting agency violated procu

statutes or regulations, unless it concludes 

violation did not prejudice the protester. W

protest is sustained, GAO will recommend

appropriate corrective action. In fashionin

recommendation, GAO will take into cons

the circumstances of the procurement, suc

agency’s stated need for the goods or serv

issue, the extent performance has been co

post-award protests where performance h

stayed), and similar factors. In appropriate

circumstances, GAO will recommend term

an improper award or, where this is not fe

the agency not exercise any renewal optio

improperly awarded contract. 4 C.F.R. § 2

Page 37 GAO/OGC-96-24 Bid Pro
If the protest is sustained, GAO will recom

the protester be reimbursed for the costs o

pursuing the protest, including attorneys’ f

consultant and expert witness fees. Occas

where there is no other relief available, GA

recommend that the protester also be reim

the costs of preparing its bid or proposal. 4 

§ 21.8(d).

Where GAO has recommended reimbursem

costs, the protester must submit a detailed 

costs, certifying the time expended and co

in pursuing the protest, directly to the con

agency within 60 days after receipt of GAO

recommendation that the agency pay these 

4 C.F.R. § 21.8(f)(1). A claim must be supp

adequate documentation. GAO expects the 

and the agency to determine the exact amo

paid. If the protester and the agency canno

GAO may, upon request of the protester, d

matter. 4 C.F.R. § 21.8(f)(2). Protesters sho

mind that, except in very limited circumsta

costs for attorneys’ fees may not exceed $

hour. GAO never recommends that agenci

profits or other common-law damages.

When GAO recommends corrective action

Competition in Contracting Act of 1984 req

agencies affected to report to the Comptro

General whenever they have not fully impl

the recommendation within 60 days. The C

General, in turn, annually reports to the Co

each instance where recommendations we

implemented.

Page 38 GAO/OGC-96-24 Bid Pro
Judicial

Proceedings

A protester must immediately advise GAO 

court proceeding which involves the subje

a pending protest and must file with GAO 

relevant court documents. 4 C.F.R. § 21.11

Page 39 GAO/OGC-96-24 Bid Pro
will not consider a protest where the matt

is the subject of litigation in court. 4 C.F.R

For example, if a party files a protest with 

concerning the award of a contract, and th

files a complaint in court also challenging 

GAO will dismiss the protest. However, at 

of the court, GAO may review the protest a

advisory opinion or a decision for the cour

consideration. Id. In such a case, the time 

filing the agency report, filing comments o

report, conducting a hearing and filing com

issuing a decision may be modified to resp

promptly to the court’s request. Id.

GAO also will not review a protest where t

involved have already been decided on the 

court. Id.

Requests for

Reconsideration

Any party who participated in the protest, 

the protester, any intervenor, and the cont

agency, may request that GAO reconsider 

in the protest. 4 C.F.R. § 21.14(a). A reques

reconsideration does not result in the with

award or the suspension of contract perfo

4 C.F.R. § 21.14(c).

GAO must receive the request for reconsid

within 10 days after the basis of reconside

known or should have been known, which

earlier. 4 C.F.R. § 21.14(b). The request mu

the alleged factual and/or legal errors in th

4 C.F.R. § 21.14(a). GAO will not consider 

which merely repeats the party’s views alr

expressed in the protest; a request which s

expresses disagreement with the decision; 

request which provides information or rais

argument that could have been, but was no

or raised during the protest.

Page 40 GAO/OGC-96-24 Bid Pro
The regulations governing the bid protest p

appear in Part 21 of Title 4 of the Code of F

Regulations. Those regulations, which are 

to new protests filed on or after August 8, 

reprinted below.

§ 21.0 Definitions. (a) Interested party means an actual or pr

bidder or offeror whose direct economic in

would be affected by the award of a contra

failure to award a contract.

(b) Intervenor means an awardee if the aw

been made or, if no award has been made, 

or offerors who appear to have a substanti

of receiving an award if the protest is deni

(c) Federal agency means any executive d

or independent establishment in the execu

branch, including any wholly owned gover

corporation, and any establishment in the 

or judicial branch, except the Senate, the H

Representatives, and the Architect of the C

any activities under his direction.

(d) Contracting agency means a Federal a

which has awarded or proposes to award a 

under a protested procurement.

(e) Days are calendar days. In computing 

of time described in Subchapter V, Chapte

Title 31, United States Code, including tho

described in this part, the day from which 

begins to run is not counted, and when the 

the period is a Saturday, Sunday, or Feder

the period extends to the next day that is n

Saturday, Sunday, or Federal holiday. Simi

the General Accounting Office (GAO), or a

Federal agency where a submission is due

Page 41 GAO/OGC-96-24 Bid Pro
for all or part of the last day, the period ex

next day on which the agency is open.

(f) Adverse agency action is any action or 

a contracting agency which is prejudicial t

position taken in a protest filed with the ag

including a decision on the merits of a pro

opening of bids or receipt of proposals, th

contract, or the rejection of a bid despite a 

protest; or contracting agency acquiescenc

continued and substantial contract perform

(g) A document is filed on a particular day 

received by GAO by 5:30 p.m., eastern time

day. A document may be filed by hand deli

or commercial carrier; parties wishing to f

document by facsimile transmission or oth

electronic means must ensure that the nec

equipment is operational at GAO’s Procure

Control Group.

§ 21.1 Filing a protest. (a) An interested party may protest a solic

other request by a Federal agency for offer

contract for the procurement of property o

the cancellation of such a solicitation or o

request; an award or proposed award of su

contract; and a termination of such a contr

protest alleges that the termination was ba

improprieties in the award of the contract

(b) Protests must be in writing and addres

follows: General Counsel, General Accoun

441 G Street, NW., Washington, DC 20548, 

Procurement Law Control Group.

(c) A protest filed with GAO shall:

(1) Include the name, address, and telepho

facsimile numbers of the protester,

Page 42 GAO/OGC-96-24 Bid Pro
(2) Be signed by the protester or its repres

(3) Identify the contracting agency and the

solicitation and/or contract number,

(4) Set forth a detailed statement of the leg

factual grounds of protest including copies 

documents,

(5) Set forth all information establishing th

protester is an interested party for the pur

filing a protest,

(6) Set forth all information establishing th

timeliness of the protest,

(7) Specifically request a ruling by the Com

General of the United States, and

(8) State the form of relief requested.

(d) In addition, a protest filed with GAO m

(1) Request a protective order,

(2) Request specific documents, explainin

relevancy of the documents to the protest 

and

(3) Request a hearing, explaining the reaso

hearing is needed to resolve the protest.

(e) The protester shall furnish a complete 

protest, including all attachments, to the in

location designated by the contracting age

solicitation for receipt of protests, or if the

designation, to the contracting officer. The 

individual or location (or, if applicable, the

contracting officer) must receive a comple

Page 43 GAO/OGC-96-24 Bid Pro
the protest and all attachments not later th

after the protest is filed with GAO. The pro

document must indicate that a complete c

protest and all attachments are being furni

1 day to the appropriate individual or loca

(f) No formal briefs or other technical form

pleading or motion are required. Protest su

should be concise and logically arranged, a

clearly state legally sufficient grounds of p

Protests of different procurements should 

separately filed.

(g) Unless precluded by law, GAO will not 

material submitted by a protester from any 

outside the government. If the protester be

the protest contains information which sh

withheld, a statement advising of this fact 

the front page of the submission. This info

must be identified wherever it appears, an

protester must file a redacted copy of the p

which omits the information with GAO an

agency within 1 day after the filing of its p

GAO.

(h) Parties who intend to file documents c

classified information should notify GAO i

to obtain advice regarding procedures for 

handling the information.

(i) A protest may be dismissed for failure t

with any of the requirements of this sectio

for the items in paragraph (d) of this sectio

addition, a protest shall not be dismissed f

comply with paragraph (e) of this section 

contracting officer has actual knowledge o

of protest, or the agency, in the preparatio

report, was not prejudiced by the proteste

noncompliance.

Page 44 GAO/OGC-96-24 Bid Pro
§ 21.2 Time for filing. (a)(1) Protests based upon alleged improp

solicitation which are apparent prior to bid 

or the time set for receipt of initial propos

filed prior to bid opening or the time set fo

initial proposals. In procurements where p

are requested, alleged improprieties which 

exist in the initial solicitation but which ar

subsequently incorporated into the solicita

be protested not later than the next closin

receipt of proposals following the incorpo

(2) Protests other than those covered by p

(a)(1) of this section shall be filed not late

10 days after the basis of protest is known 

have been known (whichever is earlier), w

exception of protests challenging a procur

conducted on the basis of competitive pro

under which a debriefing is requested and

requested, is required. In such cases, with 

any protest basis which is known or shoul

known either before or as a result of the d

the initial protest shall not be filed before 

debriefing date offered to the protester, bu

filed not later than 10 days after the date o

debriefing is held.

(3) If a timely agency-level protest was pre

filed, any subsequent protest to GAO filed 

10 days of actual or constructive knowledg

adverse agency action will be considered, 

the agency-level protest was filed in accor

paragraphs (a)(1) and (a)(2) of this section

contracting agency imposes a more stringe

filing, in which case the agency’s time for f

control. In cases where an alleged impropr

solicitation is timely protested to a contrac

agency, any subsequent protest to GAO wi

considered timely if filed within the 10-day 

Page 45 GAO/OGC-96-24 Bid Pro
provided by this paragraph, even if filed af

opening or the closing time for receipt of p

(b) Protests untimely on their face may be 

A protester shall include in its protest all in

establishing the timeliness of the protest; a 

will not be permitted to introduce for the f

a request for reconsideration information 

to establish that the protest was timely.

(c) GAO, for good cause shown, or where 

determines that a protest raises issues sign

the procurement system, may consider an 

protest.

§ 21.3 Notice of protest,

submission of agency

report, and time for filing

of comments on report.

(a) GAO shall notify the contracting agenc

telephone within 1 day after the filing of a 

and, unless the protest is dismissed under 

shall promptly send a written confirmation 

contracting agency and an acknowledgme

protester. The contracting agency shall im

give notice of the protest to the contractor 

has been made or, if no award has been m

bidders or offerors who appear to have a r

prospect of receiving an award. The contra

agency shall furnish copies of the protest s

to those parties, except where disclosure o

information is prohibited by law, with inst

communicate further directly with GAO. A

shall furnish copies of all protest commun

the contracting agency and to other partic

parties. All protest communications shall b

means reasonably calculated to effect exp

delivery.

(b) A contracting agency or intervenor wh

that the protest or specific protest allegati

be dismissed before submission of an agen

Page 46 GAO/OGC-96-24 Bid Pro
should file a request for dismissal as soon 

practicable.

(c) The contracting agency shall file a repo

protest with GAO within 30 days after the 

notice of the protest from GAO. The repor

to the parties need not contain documents 

agency has previously furnished or otherw

available to the parties in response to the p

least 5 days prior to the filing of the report

which the protester has filed a request for 

documents, the agency shall provide to all 

GAO a list of those documents, or portions 

documents, which the agency has released 

protester or intends to produce in its repo

the documents which the agency intends t

from the protester and the reasons for the 

withholding. Any objection to the scope of 

agency’s proposed disclosure or nondisclo

documents must be filed with GAO and th

parties within 2 days of receipt of this list.

(d) The report shall include the contractin

statement of the relevant facts, including a 

estimate of the contract value, a memoran

and a list and a copy of all relevant docum

portions of documents, not previously pro

including, as appropriate: the protest; the b

proposal submitted by the protester; the b

proposal of the firm which is being consid

award, or whose bid or proposal is being p

all evaluation documents; the solicitation, 

the specifications; the abstract of bids or o

any other relevant documents. In appropri

the contracting agency may request that th

produce relevant documents, or portions o

documents, that are not in the agency’s po

Page 47 GAO/OGC-96-24 Bid Pro
(e) Subject to any protective order issued 

protest pursuant to § 21.4, the contracting 

shall simultaneously furnish a copy of the 

the protester and any intervenors. The cop

report filed with GAO shall list the parties 

been furnished copies of the report. Where 

does not have counsel admitted to a prote

and documents are withheld from the prot

accordance with this part, the agency shal

documents adequate to inform the protest

basis of the agency’s position.

(f) The contracting agency may request an 

of time for the submission of the list of do

be provided by the agency pursuant to § 2

the submission of the agency report. Exten

be granted on a case-by-case basis.

(g) The protester may request additional d

after receipt of the agency report when the

existence or relevance first becomes evide

when authorized by GAO, any request for 

documents must be filed with GAO and th

contracting agency not later than 2 days af

existence or relevance is known or should 

known, whichever is earlier. The contracti

shall provide the requested documents, or 

documents, and a list to GAO and the othe

within 2 days or explain why it is not requi

produce the documents.

(h) Upon the request of a party, GAO will d

whether the contracting agency must prov

withheld documents, or portions of docum

whether this should be done under a prote

When withheld documents are provided, th

protester’s comments on the agency repor

filed within the original comment filing pe

GAO determines that an extension is appr

Page 48 GAO/OGC-96-24 Bid Pro
(i) Comments on the agency report shall b

GAO within 10 days after receipt of the rep

copy provided to the contracting agency a

participating parties. The protest shall be d

unless the protester files comments or a w

statement requesting that the case be deci

existing record, or requests an extension o

within the 10-day period. Unless otherwise 

the protester, GAO will assume the protes

the agency report by the due date specified 

acknowledgment of protest furnished by G

a showing that the specific circumstances 

require a period longer than 10 days for th

submission of comments, GAO will set a n

the submission of comments. Extensions w

granted on a case-by-case basis.

(j) GAO may request or permit the submis

additional statements by the parties and by 

parties not participating in the protest as m

necessary for the fair resolution of the pro

agency and other parties shall not submit a

additional statements unless the statemen

specifically requested by GAO or submitte

permission has been granted by GAO.

§ 21.4 Protective orders. (a) At the request of a party or on its own 

GAO may issue a protective order controll

treatment of protected information. Such i

may include proprietary, confidential, or

source-selection-sensitive material, as wel

information the release of which could res

competitive advantage to one or more firm

protective order shall establish procedure

application for access to protected inform

identification and safeguarding of that info

and submission of redacted copies of docu

omitting protected information. Because a 

order serves to facilitate the pursuit of a p

Page 49 GAO/OGC-96-24 Bid Pro
protester through counsel, it is the respon

protester’s counsel to request that a protec

be issued and to submit timely application

admission under that order.

(b) If no protective order has been issued, 

may withhold from the parties those portio

report which would ordinarily be subject t

protective order. GAO will review in came

information not released to the parties.

(c) After a protective order has been issue

or consultants retained by counsel appear

behalf of a party may apply for admission 

order by submitting an application to GAO

copies furnished simultaneously to all part

application shall establish that the applica

involved in competitive decision-making fo

that could gain a competitive advantage fr

to the protected information and that ther

significant risk of inadvertent disclosure o

information. Objections to an applicant’s a

shall be raised within 2 days after receipt o

application, although GAO may consider o

raised after that time.

(d) Any violation of the terms of a protecti

may result in the imposition of such sancti

deems appropriate, including referral to ap

bar associations or other disciplinary bodi

restricting the individual’s practice before 

§ 21.5 Protest issues not

for consideration.

GAO shall summarily dismiss a protest or 

protest allegations that do not state a valid 

protest, are untimely (unless considered p

§ 21.2(c)), or are not properly before GAO

or specific protest allegations may be dism

time sufficient information is obtained by 

warranting dismissal. Where an entire prot

Page 50 GAO/OGC-96-24 Bid Pro
dismissed, no agency report shall be filed; 

specific protest allegations are dismissed, 

report shall be filed on the remaining alleg

Among the protest bases which shall be di

the following:

(a) Contract administration. The adminis

an existing contract is within the discretio

contracting agency. Disputes between a co

and the agency are resolved pursuant to th

clause of the contract and the Contract Di

of 1978. 41 U.S.C. 601-613.

(b) Small Business Administration issue

(1) Small business size standards and sta

industrial classification. Challenges of es

size standards or the size status of particu

and challenges of the selected standard in

classification may be reviewed solely by th

Business Administration. 15 U.S.C. 637(b)(

(2) Small Business Certificate of Compete

Program. Any referral made to the Small B

Administration pursuant to sec. 8(b)(7) of 

Business Act, or any issuance of, or refusa

certificate of competency under that sectio

be reviewed by GAO absent a showing of p

faith on the part of government officials or 

consider vital information bearing on the f

responsibility. 15 U.S.C. 637(b)(7).

(3) Procurements under sec. 8(a) of the S

Business Act. Under that section, since co

entered into with the Small Business Admi

at the contracting officer’s discretion and 

terms as are agreed upon by the procuring 

the Small Business Administration, the dec

place or not to place a procurement under 

program is not subject to review absent a 

Page 51 GAO/OGC-96-24 Bid Pro
possible bad faith on the part of governme

or that regulations may have been violated

637(a).

(c) Affirmative determination of respons

the contracting officer. Because the determ

that a bidder or offeror is capable of perfo

contract is based in large measure on subj

judgments which generally are not readily 

of reasoned review, an affirmative determi

responsibility will not be reviewed absent 

of possible bad faith on the part of governm

officials or that definitive responsibility cr

solicitation were not met.

(d) Procurement integrity. For any Feder

procurement, GAO will not review an alleg

violation of subsections (a), (b), (c), or (d) 

of the Office of Federal Procurement Polic

41 U.S.C. 423, as amended by sec. 4304 of t

Defense Authorization Act for Fiscal Year 

Pub. L. 104-106, 110 Stat. 186, February 10

where the protester failed to report the inf

believed constituted evidence of the offen

Federal agency responsible for the procur

within 14 days after the protester first disc

possible violation. The provision in paragr

§ 21.5 will apply not later than January 1, 1

(e) Protests not filed either in GAO or the 

agency within the time limits set forth in § 

(f) Protests which lack a detailed statemen

legal and factual grounds of protest as req

§ 21.1(c)(4), or which fail to clearly state l

sufficient grounds of protest as required b

(g) Procurements by agencies other than 

agencies as defined by sec. 3 of the Federa

Page 52 GAO/OGC-96-24 Bid Pro
and Administrative Services Act of 1949, 

472. Protests of procurements or propose

procurements by agencies such as the U.S

Service, the Federal Deposit Insurance Co

and nonappropriated fund activities are be

GAO’s bid protest jurisdiction as establish

31 U.S.C. 3551-3556.

(h) Subcontract protests. GAO will not con

protest of the award or proposed award of 

subcontract except where the agency awa

prime contract has requested in writing th

subcontract protests be decided pursuant 

§ 21.6 Withholding of

award and suspension of

contract performance.

Where a protest is filed with GAO, the con

agency may be required to withhold award 

suspend contract performance. The requir

the withholding of award and the suspensi

contract performance are set forth in 31 U

3553(c) and (d).

§ 21.7 Hearings. (a) At the request of a party or on its own 

GAO may conduct a hearing in connection 

protest. The request shall set forth the rea

hearing is needed to resolve the protest.

(b) Prior to the hearing, GAO may hold a p

conference to discuss and resolve matters 

procedures to be followed, the issues to be

considered, and the witnesses who will tes

(c) Hearings generally will be conducted a

practicable after receipt by the parties of t

report and relevant documents. Although h

ordinarily will be conducted at GAO in Wa

DC, hearings may, at the discretion of GAO

conducted at other locations, or by telepho

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(d) All parties participating in the protest s

invited to attend the hearing. Others may b

to attend as observers and may participate 

by GAO’s hearing official. In order to prev

improper disclosure of protected informat

hearing, GAO’s hearing official may restric

attendance during all or part of the procee

(e) Hearings shall normally be recorded an

transcribed. If a recording and/or transcrip

any party may obtain copies at its own exp

(f) If a witness whose attendance has been 

by GAO fails to attend the hearing or fails 

relevant question, GAO may draw an infer

unfavorable to the party for whom the wit

have testified.

(g) If a hearing is held, no separate comme

agency report should be submitted unless 

requested by GAO. Each party shall file wi

within 5 days after the hearing was held or 

specified by GAO, a single document expr

comments on both the hearing and agency 

with copies furnished to the other parties. 

date, if the protester has not filed commen

written statement requesting that the case 

on the existing record, GAO shall dismiss t

(h) In post-hearing comments, the parties 

reference all testimony and admissions in 

record that they consider relevant, providi

citations to the testimony and admissions 

§ 21.8 Remedies. (a) If GAO determines that a solicitation, c

of a solicitation, termination of a contract, 

award, or award does not comply with sta

regulation, it shall recommend that the con

Page 54 GAO/OGC-96-24 Bid Pro
agency implement any combination of the 

remedies:

(1) Refrain from exercising options under 

contract;

(2) Terminate the contract;

(3) Recompete the contract;

(4) Issue a new solicitation;

(5) Award a contract consistent with statu

regulation; or

(6) Such other recommendation(s) as GAO

determines necessary to promote complia

(b) In determining the appropriate

recommendation(s), GAO shall, except as 

paragraph (c) of this section, consider all

circumstances surrounding the procureme

proposed procurement including the serio

the procurement deficiency, the degree of 

to other parties or to the integrity of the co

procurement system, the good faith of the 

extent of performance, the cost to the gov

the urgency of the procurement, and the im

recommendation(s) on the contracting age

mission.

(c) If the head of the procuring activity det

that performance of the contract notwiths

pending protest is in the government’s bes

GAO shall make its recommendation(s) un

paragraph (a) of this section without regar

cost or disruption from terminating, recom

reawarding the contract.

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(d) If GAO determines that a solicitation, p

award, or award does not comply with sta

regulation, it may recommend that the con

agency pay the protester the costs of:

(1) Filing and pursuing the protest, includi

attorneys’ fees and consultant and expert w

fees; and

(2) Bid and proposal preparation.

(e) If the contracting agency decides to tak

corrective action in response to a protest, 

recommend that the agency pay the protes

costs of filing and pursuing the protest, inc

attorneys’ fees and consultant and expert w

fees. The protester shall file any request th

recommend that costs be paid within 15 da

being advised that the contracting agency 

to take corrective action. The protester sh

copy of its request to the contracting agen

may file a response within 15 days after re

request, with a copy furnished to the prote

(f)(1) If GAO recommends that the contra

agency pay the protester the costs of filing 

pursuing the protest and/or of bid or propo

preparation, the protester and the agency 

attempt to reach agreement on the amoun

The protester shall file its claim for costs, 

and certifying the time expended and cost

with the contracting agency within 60 days 

receipt of GAO’s recommendation that the 

the protester its costs. Failure to file the cl

that time may result in forfeiture of the pro

right to recover its costs.

(2) The contracting agency shall issue a de

the claim for costs as soon as practicable a

Page 56 GAO/OGC-96-24 Bid Pro
claim is filed. If the protester and the cont

agency cannot reach agreement within a r

time, GAO may, upon request of the protes

recommend the amount of costs the agenc

pay in accordance with 31 U.S.C. 3554(c). 

cases, GAO may also recommend that the 

agency pay the protester the costs of pursu

claim for costs before GAO.

(3) The contracting agency shall notify GA

60 days after GAO recommends the amoun

the agency should pay the protester of the 

taken by the agency in response to the

recommendation.

§ 21.9 Time for decision

by GAO.

(a) GAO shall issue a decision on a protest 

100 days after it is filed.

(b) In protests where GAO uses the expres

procedures in § 21.10, GAO shall issue a de

protest within 65 days after it is filed.

(c) GAO, to the maximum extent practicab

resolve a timely supplemental protest addi

more new grounds to an existing protest, o

amended protest, within the time limit esta

paragraph (a) of this section for decision o

protest. If a supplemental or an amended p

cannot be resolved within that time limit, G

resolve the supplemental or amended prot

the express option procedures in § 21.10.

§ 21.10 Express options,

flexible alternative

procedures, accelerated

schedules, summary

decisions, and status and

other conferences.

(a) At the request of a party or on its own 

GAO may decide a protest using an expres

(b) The express option will be adopted at t

discretion of GAO and only in those cases 

resolution within 65 days.

Page 57 GAO/OGC-96-24 Bid Pro
(c) Requests for the express option shall b

and received in GAO not later than 5 days 

protest or supplemental/amended protest 

GAO will promptly notify the parties whet

will be handled using the express option.

(d) When the express option is used, the fo

schedule applies instead of those deadline

and § 21.7:

(1) The contracting agency shall file a com

report with GAO and the parties within 20 

it receives notice from GAO that the expre

will be used.

(2) Comments on the agency report shall b

GAO and the other parties within 5 days af

of the report.

(3) If a hearing is held, no separate comme

agency report under paragraph (d)(2) of th

should be submitted unless specifically req

GAO. Consolidated comments on the agen

and hearing shall be filed within 5 days aft

hearing was held or as specified by GAO.

(4) Where circumstances demonstrate tha

no longer suitable for resolution using the 

option, GAO shall establish a new schedul

submissions by the parties.

(e) GAO may use flexible alternative proce

promptly and fairly resolve a protest, inclu

establishing an accelerated schedule and/o

summary decision.

(f) GAO may conduct status and other con

telephone or in person with all parties par

Page 58 GAO/OGC-96-24 Bid Pro
a protest to promote the expeditious devel

and resolution of the protest.

§ 21.11 Effect of judicial

proceedings.

(a) A protester must immediately advise G

court proceeding which involves the subje

a pending protest and must file with GAO 

relevant court documents.

(b) GAO will dismiss any protest where th

involved is the subject of litigation before 

competent jurisdiction, or where the matte

has been decided on the merits by a court 

competent jurisdiction. GAO may, at the re

court, issue an advisory opinion on a bid p

that is before the court. In these cases, unl

different schedule is established, the times 

in this part for filing the agency report (§ 2

filing comments on the report (§ 21.3(i)), h

hearing and filing comments (§ 21.7), and 

decision (§ 21.9) shall apply.

§ 21.12 Distribution of

decisions.

(a) Unless it contains protected informatio

a decision shall be provided to the protest

intervenors, the head of the contracting ac

responsible for the protested procurement

senior procurement executive of each Fed

involved; a copy shall also be made availab

public. A copy of a decision containing pro

information shall be provided only to the c

agency and to individuals admitted to any 

order issued in the protest. A public versio

the protected information shall be prepare

possible.

(b) Decisions are available from GAO by e

means.

§ 21.13 Nonstatutory

protests.

(a) GAO will consider protests concerning 

subcontracts by or for a Federal agency, s

Page 59 GAO/OGC-96-24 Bid Pro
Federal agency, or procurements by agenc

government other than Federal agencies a

§ 21.0(c) if the agency involved has agreed 

to have protests decided by GAO.

(b) The provisions of this part shall apply t

nonstatutory protests except for the provi

§ 21.8(d) pertaining to recommendations f

payment of costs. The provision for the wi

of award and the suspension of contract p

31 U.S.C. 3553(c) and (d), also does not ap

nonstatutory protests.

§ 21.14 Request for

reconsideration.

(a) The protester, any intervenor, and any 

agency involved in the protest may reques

reconsideration of a bid protest decision. G

not consider a request for reconsideration 

not contain a detailed statement of the fac

legal grounds upon which reversal or mod

deemed warranted, specifying any errors o

or information not previously considered.

(b) A request for reconsideration of a bid p

decision shall be filed, with copies to the p

participated in the protest, not later than 1

the basis for reconsideration is known or s

been known, whichever is earlier.

(c) GAO will summarily dismiss any reque

reconsideration that fails to state a valid b

reconsideration or is untimely. The filing o

for reconsideration does not require the w

of award and the suspension of contract p

under 31 U.S.C. 3553(c) and (d).

Page 60 GAO/OGC-96-24 Bid Pro
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The sample

protective order

and the sample

applications for

access to

material under a

protective order

are provided for

informational

purposes only

and are subject

to change.

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Material Under a Protective Order

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