GAO Bid Protests: An Overview of Time Frames and Procedures
Released: 2016-01-19T00:00:00

B id protests—or written objections to certain actions, described below, taken by federal agencies when acquiring supplies or services for their direct use or benefit—are of perennial interest to Congress. In some cases, this interest arises from reported increases in the number of bid protests filed annually and the effects that such protests can have on agency missions and operations. In other cases, congressional interest can be prompted by notable protests, or by agency determinations not to follow any nonbinding recommendations made to federal agencies by the Government Accountability Office (GAO) in bid protest decisions.

GAO is not the only forum with authority to hear bid protests involving federal acquisitions. The procuring agency and the U.S. Court of Federal Claims can also hear bid protests. However, GAO hears more protests than the Court of Federal Claims, the only other forum for which data are readily available. Thus, its protest procedures—which can differ somewhat from those of the procuring agencies and the Court of Federal Claims—are the focus of this report.

The report is one of two providing Congress with background on the GAO bid-protest process. It provides an overview of the time frames and procedures in a GAO bid protest, including (1) what issues can be protested with GAO; (2) who can file or be a party to a GAO protest; (3) the procedures for bringing and resolving GAO protests; (4) the time frames involved in GAO protests; (5) the automatic stay of contract award or performance triggered by a GAO protest, as well as the basis for agency overrides of automatic stays and judicial review of agency override determinations; (6) the basis and effects of GAO decisions; and (7) reconsideration and "appeal" of GAO decisions. A companion report, CRS Report R40227, GAO Bid Protests: Trends and Analysis , by [author name scrubbed] and [author name scrubbed], analyzes recent trends in bid protests filed with GAO, particularly protests involving the Department of Defense.

Background

Under federal law, a bid protest is a written objection by an "interested party"—a term whose meaning is discussed further below (see " Who Can File or Be a Party to a GAO Protest? ")—to the conduct of a federal agency in acquiring supplies or services for its own direct use and benefit. This conduct can include

(A) [a] solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services.

(B) [t]he cancellation of such a solicitation or other request.

(C) [a]n award or proposed award of such a contract.

(D) [a] termination or cancellation of an award of such a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.

(E) [c]onversion of a function that is being performed by Federal employees to private sector performance.

Bid protests only became part of the federal procurement system in the early 20 th century, more than 100 years after the federal government began purchasing supplies and services. However, Congress currently authorizes bid protests in three separate forums—the procuring agency, GAO, and the Court of Federal Claims—in recognition of protests' role in providing redress to disappointed bidders and offerors and ensuring the integrity of the federal procurement process.

Historical Development of Federal Bid-Protest Mechanisms

GAO first began hearing bid protests in the early 20 th century on the theory that its statutory authority to settle and adjust "all claims and demands" against the United States encompassed bid protests. The federal courts did not hear protests at that time. Indeed, in its 1940 decision in Perkins v. Lukens Steel Company , the Supreme Court found that actual or potential bidders who had been disappointed in their dealings with the federal government lacked standing to challenge alleged violations of federal procurement laws by government agencies. The Court reached this conclusion because it viewed these federal procurement laws as having been enacted strictly for the government's benefit, "for the purpose of keeping its own house in order," and thus not enforceable against the government by private parties. However, several decades later, beginning with the 1970 decision by the U.S. Court of Appeals for the District of Columbia in Scanwell Laboratories, Inc. v. John H. Shaffer , the federal courts came to hold that the Administrative Procedure Act (APA) of 1946 authorized them to hear bid protests.

Congress later expressly granted bid protest jurisdiction to GAO when it enacted the Competition in Contracting Act (CICA) of 1984. GAO's long history of handling bid protests, coupled with several unique aspects of the GAO bid-protest process, most notably the stay of contract award or performance that may result from the filing of a GAO protest, make it a primary locus for federal bid protests.

Purposes of Bid-Protest Processes

Although disappointed bidders or offerors would generally have no right to protest if Congress did not provide for this right with either CICA or the APA, Congress has chosen to authorize several judicial and other forums to hear bid protests for several reasons. First, protest mechanisms ensure that entities doing business with the government can air their complaints about government contracting processes and obtain relief. Without such mechanisms, certain frustrations that citizens have with their government could remain unaddressed. Additionally, absent such mechanisms, entities might be less willing to do business with the government, which could diminish competition for government contracts and drive up prices. Second, protest mechanisms enhance the accountability of procurement officials and government agencies by highlighting and correcting mistakes and misconduct. This accountability helps to ensure the integrity of the procurement system. If the government's procurement system were perceived as corrupt or ineffective, contractors might be less willing to compete for government contracts, and the price at which the government acquires goods and services could increase. A corrupt or ineffective procurement system could also waste taxpayers' money.

These benefits of bid protests are not costless, however; protests can impede the prompt and efficient acquisition of goods and services needed by the government. Particularly when contract award or performance is stayed due to the filing of a bid protest, as may happen with GAO protests, protests can delay agency procurement actions. Protests also require agency officials to spend time explaining their conduct to disappointed bidders and offerors, and in defending their conduct before judicial or other forums. Moreover, fear of possible protests may increase the time and energy that agencies expend in documenting their procurement decisions. Congress has, however, historically viewed the benefits of protests as outweighing these costs.

The GAO Bid-Protest Process

When it enacted CICA, Congress charged GAO with "provid[ing] for the inexpensive and expeditious resolution of [bid] protests" to "the maximum extent practicable." GAO has attempted to meet these goals through the use of time frames and procedures partly prescribed by statute and partly established by administrative rulemaking. These time frames and procures are discussed below.

What Issues Can Be Protested with GAO?

Under CICA, disappointed bidders or offerors can protest to GAO about an "alleged violation of ... procurement statute or regulation" by a federal agency in (1) soliciting or otherwise requesting offers; (2) cancelling such solicitations or requests; (3) awarding or proposing to award a contract; (4) terminating or cancelling a contract due to improprieties involving its award; or (5) converting functions performed by government employees to private sector performance. The alleged violation may arise prior to contract award, as when a contractor claims that some aspect of the solicitation would impermissibly disadvantage it in competing for the contract. Alternately, the alleged violation may arise with the contract, as when a contractor claims that the government failed to follow the rules for the competition or otherwise acted improperly in awarding the contract to the protestor's competitor(s). Starting in FY2008, under additional jurisdiction granted to GAO by Congress, GAO may also hear alleged violations pertaining to agencies' issuance of task or delivery orders under multiple-award contracts, or contracting out under Office of Management and Budget (OMB) Circular A-76. It can also hear protests involving Transportation Security Administration contracts, which had formerly been excluded from GAO review.

GAO regulations, however, bar GAO from considering certain issues, even when these issues are implicated in the formation of a government contract. These issues generally include the following:

disputes between a contractor and an agency regarding the terms and performance of an existing contract; challenges to small business size standards and standard industrial classifications; issuance of or refusal to issue certificates of competency under Section 8(b)(7) of the Small Business Act; determinations to procure particular supplies or services through the Minority Small Business and Capital Ownership Development Program (commonly known as the 8(a) Program); challenges to agency determinations that a prospective contractor is affirmatively "responsible" for purposes of the award of a contract; alleged procurement integrity violations which the protester did not report to the agency responsible for the alleged violations within 14 days of discovering them; procurements by agencies that are not "federal agencies" as defined in Section 3 of the Federal Property and Administrative Services Act (40 U.S.C. §102); awards or proposed awards of subcontracts, unless the agency awarding the prime contract has requested in writing that subcontract protests be handled by GAO as "non-statutory protests"; the debarment and suspension of government contractors; protests asserting that the protester's proposal should not have been included or kept in the competitive range; and decisions by "agency tender officials" regarding whether to file protests in connection with "public-private competitions," which are competitions conducted to determine whether the "commercial functions" of federal agencies are performed using government personnel or contractor employees.

Who Can File or Be a Party to a GAO Protest?

By statute, a GAO bid protest may be filed by any interested party , or any "actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract." This focus upon direct economic interest in determining who is an interested party means that a larger number of contractors can generally bring pre-award protests than can bring post-award protests. Prior to contract award, contractors who are considering bidding or offering generally qualify as interested parties. In contrast, after contract award, only contractors who bid on the contract or submitted offers may generally qualify as interested parties because only they are eligible for the award. Moreover, because of the focus on direct economic interest, GAO may require that contractors both have bid or offered on the contract and be next in line for its award if the protest is sustained for them to qualify as interested parties. Given their lack of "direct economic interests," concerned citizens are not interested parties who may bring GAO bid protests. Subcontractors on federal contracts also generally lack standing to bring a GAO protest unless the contracting agency has requested that GAO hear such protests.

In addition to prospective or actual bidders or offerors, other parties to GAO bid protests include the agency responsible for the alleged violations of federal procurement law and, potentially, one or more intervenors. Intervenors enter protests to protect their status as awardees or potential awardees. When the contract has not yet been awarded, GAO regulations permit all bidders or offerors who "appear to have a substantial prospect of receiving an award if the protest is denied" to intervene. When the contract has been awarded, only the winning bidder or offeror may generally intervene.

Procedures for the "Inexpensive" Resolution of Protests

GAO has adopted various regulations and practices to ensure that it resolves protests "inexpensively," as required by statute. Among other things, it increases the feasibility of interested parties filing protests on their own behalf, without legal representation, by providing that "[n]o formal briefs or other technical forms of pleading or motion are required." Rather, for GAO to consider a protest, a protestor need only

identify the contracting agency and the solicitation or contract number; set forth a detailed statement of the legal and factual grounds of protest, including copies of relevant documents; establish that the protester is an interested party making a timely protest; and state the relief requested (e.g., termination or re-competition of a contract).

GAO also allows protesters to avoid the costs of traveling to Washington, DC, where GAO is located, by providing for the resolution of protests based upon documents filed by the protester and the agency, as opposed to in-person hearings. Hearings are relatively rare in GAO protests. Between FY2011 and FY2014, 3% to 8% of GAO cases annually entailed hearings. Moreover, when held, hearings are generally less formal than hearings in federal court, with GAO and the parties determining at a pre-hearing conference what procedures will be followed, as well as what issues will be considered and which witnesses will testify.

These factors, as well as the strict time frames for resolving GAO protests, described below, can make GAO a less expensive venue in which to conduct bid protests than the Court of Federal Claims. Protesters in the Court of Federal Claims are, in contrast, generally more likely to be represented by attorneys and have hearings on their protests. Their protests can also take longer to resolve. However, some commentators have wondered whether GAO's comparatively quicker and less formal procedures make GAO more likely than the Court of Federal Claims to issue erroneous decisions. There have also been questions about whether GAO, with its comparatively informal procedures, is the best forum for "awards involving complex systems or services with values rising to the hundreds of millions of dollars or more."

Time Frames for the "Expeditious Resolution" of Protests

Federal statutes and regulations also provide for the "expeditious" resolution of protests by requiring GAO to adhere to strict time frames, including resolving protests within 65 to 100 days after they are filed. These time frames help ensure that protesters receive prompt resolution of their claims, and prevent bid protests from delaying the procurement of necessary supplies and services by federal agencies. A protester who files a bid protest with the Court of Federal Claims, in contrast, could potentially wait over 100 days before the court hears the case, and would not necessarily have the award or performance of the contract stayed for the duration of the protest, as generally happens with GAO protests. The specific time frames for the key stages in the GAO protest process are described below.

Initial Filings by Interested Parties

The time frames within which interested parties must, by regulation, file bid protests with GAO depend upon the circumstances prompting the protest. Alleged violations that are apparent prior to bid opening or the time set for receipt of initial proposals must be protested before the bid opening or by the specified time. Other alleged violations must be protested no later than 10 calendar days after they become known, or should have become known, whichever is earlier, unless the protest challenges "a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required." Protests filed after these deadlines are untimely, and GAO generally dismisses them. GAO generally considers untimely protests only when the protester shows good cause for its late filing or when GAO determines that the protest raises "issues significant to the procurement system." However, would-be protesters that miss GAO filing deadlines can sometimes still file bid protests with the Court of Federal Claims, provided they meet the court's timeliness requirements.

GAO Notice to the Agency

Once a protest is filed with GAO, GAO is required by statute to notify the federal agency whose contracting activities are being protested within one working day of receiving the protest. This notice is important for two reasons. First, the agency's receipt of the GAO notice often marks the beginning of an automatic stay of the award or performance of the contract. This is because, under CICA, federal agencies which have been notified of GAO bid protests that were filed within 10 days of contract award (or within 5 days of a debriefing) may not award or authorize performance of the contract until the protest is decided. Second, the agency's receipt of GAO's notice marks the beginning of the 30-calendar-day period within which the agency must generally respond to the GAO protest.

Agency's Response and Protester's Reply

When responding to a GAO bid protest, the agency is required by statute to file a report with GAO, generally within 30 calendar days of receiving notice of the protest. Under GAO regulations, this report must include

the contracting officer's statement of the relevant facts, including a best estimate of the contract value, a memorandum of law, and a list and a copy of all relevant documents, or portions of documents, not previously produced, including, as appropriate: the protest; the bid or proposals submitted by the protester; the bid or proposal of the firm which is being considered for the award, or whose bid or proposal is being protested; all evaluation documents; the solicitation, including the specifications; the abstract of bids or offers; and any other relevant documents.

The agency can avoid filing this report only when it (or an intervenor) requests and is granted dismissal of the protest before the report is due.

After the agency's report is filed, the protester then has 10 calendar days to submit written comments on the agency's report to GAO. If the protester fails to submit such comments, GAO is required, by its own regulations, to dismiss the protest.

Issuance of GAO's Decision on a Protest

GAO generally is required to issue its final decision on a bid protest within 100 calendar days of the protest's filing. This time frame can be shortened to 65 calendar days if GAO determines, either at the request of a party or upon its own initiative, that the protest should be treated under the "express option." GAO can also dismiss a protest that is frivolous—or that does not state, on its face, a valid basis for protest—at any time, even before the agency files its report with GAO. GAO can similarly issue a summary decision on a protest at any time.

The importance that Congress attaches to the expeditious resolution of protests by GAO is indicated by the fact that GAO is required by statute to report to Congress on any instance in which GAO fails to issue its final decision on a protest within 100 calendar days of the protest's filing. Prior to FY2014, GAO apparently never had any such instances, and thus never had to make such a report to Congress. However, the 16-day-long government shutdown at the beginning of FY2014 prompted GAO to "extend the bid protest deadlines one day for each day that GAO was shutdown." 280 protests were reportedly affected by this extension. Of these, GAO reports that 241 were resolved within 100 days without any extension, and the remaining 39 were resolved within 100 "calendar days for the period that the government was funded" (i.e., 100 days plus the 16-day extension).

Time Frames for Optional Events in the GAO Bid-Protest Process

Similarly short time frames apply to optional steps in the GAO bid-protest process. Here, GAO regulations require protesters to

request expedited review under GAO's "express option" within five calendar days of filing the protest; request a hearing "as early as possible in the protest process"; request any additional documents whose existence or relevance becomes evident only after the filing of the agency report within two calendar days of discovering their existence; and file written comments on any hearing within five calendar days of the hearing.

Automatic Stays of Contract Award or Performance

Under CICA, the filing of a bid protest with GAO may trigger an automatic stay (or postponement) of contract award or performance. With pre-award bid protests, an agency may not award the contested contract until the protest has been resolved. Similarly, with post-award bid protests, the agency must withhold authorization of performance under the contract while the protest is pending. If authorization has not been withheld, the agency must "immediately direct the contractor to cease performance under the contract" until the protest is resolved.

These bid-protest stays—commonly known as "CICA stays"—are a key aspect of the GAO bid-protest process, which Congress mandated in order to strengthen GAO's protest function. Congress did not provide for similar stays when bid protests are filed with the Court of Federal Claims. Rather, protesters filing suit in the Court of Federal Claims must meet the court's usual requirements for temporary restraining orders or preliminary injunctions in order to affect a delay of the agency's procurement activities similar to that which generally occurs automatically when a GAO protest is filed. This difference between bid protests at GAO and those at the Court of Federal Claims has prompted some commentators to worry that the stays triggered by GAO protests encourage contractors to "game the system." Such commentators worry that contractors knowingly file meritless protests with GAO in order to harass their competitors and delay awards to them, or in the hopes of obtaining short-term contracts from the government during the pendency of the GAO protest. These commentators also worry that the public interest, as embodied in the contract to be awarded or performed, is neglected during the stay. However, agencies' authority to override CICA stays, discussed below, may diminish the significance of such concerns. An override could permit an agency to proceed with contract award or performance while a protest is pending.

Agency Override of Bid-Protest Stays

CICA expressly authorizes agencies to override the automatic stay of contract award or performance that may be triggered by the filing of a GAO protest when

"urgent and compelling circumstances which significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General"; or "performance of the contract is in the best interests of the United States."

Only "urgent and compelling circumstances" may be asserted when GAO bid protests are filed prior to the award of the contract. However, either "urgent and compelling circumstances" or the "best interests of the United States" may be asserted when GAO bid protests are filed after the award of the contract.

Beyond when the grounds may be asserted, few other differences are apparent between the circumstances in which agencies can invoke "urgent and compelling circumstances" and those in which they can invoke the "best interests of the United States," as Table 2 illustrates. Some courts and commentators have suggested, however, that an agency's invocation of "urgent and compelling circumstances" has more serious overtones and ought to receive more deference than an agency's invocation of the "best interests of the United States."

Any agency override, upon any basis, requires a written finding that grounds for the override exist, and the agency is required by statute to notify GAO of this finding.

GAO and Agency Override Determinations

Although agencies are required by law to inform GAO of their override determinations, GAO does not review the agency's override determination and cannot reverse it. GAO lacks authority and jurisdiction to keep the agency from proceeding to award or authorize performance of the contract under the override. All that GAO can do is report on agency overrides to Congress, as it did in at least some of its annual reports until FY2002.

Judicial Review of Agency Override Determinations

Outside of the agency itself, the only entity that can reverse an agency override determination and reinstate the delay of contract award or performance that a GAO bid protest triggers is a federal court—currently the Court of Federal Claims —acting on the petition of the protester. To achieve such an outcome, the court would have to grant the protester's motion to restrain or enjoin the government from awarding the contract or authorizing performance under it.

Although courts once exempted agency determinations as to the "best interests of the United States" from judicial review and gave substantial deference to agency determinations as to "best interests" and "urgent and compelling circumstances," the Court of Federal Claims has recently enjoined agency overrides after subjecting the agency's override determination to "searching inquiry." Override determinations based on considerations of national security or national defense sometimes receive greater deference from the court, but not even these considerations guarantee victory for federal agencies.

Basis and Effects of GAO Decisions

GAO is charged by statute with "deciding" all bid protests filed in accordance with GAO regulations. When deciding a protest, GAO does not substitute its judgment for the agency's, or conduct de novo review of agency procurement activities and processes. Rather, GAO considers only whether the agency complied with procurement statutes or regulations, as well as had reasonable bases and adequate documentation, in its decision making.

Denials, Sustainments, and GAO Recommendations

When GAO finds no violation of federal procurement statutes or regulations, it denies the protest, leaving the agency free to award the contract, or authorize performance under it, barring a court order to the contrary. When GAO finds a violation, however, it sustains the protest and may recommend that the agency

refrain from exercising its options under the contract; re-compete the contract; issue a new solicitation; terminate the contract; award the contract consistent with the requirements of statutes or regulations; or implement any other recommendation that the "Comptroller General determines to be necessary in order to promote compliance with procurement statutes and regulations."

In deciding which of these options to recommend, GAO is required, by regulation, to consider all the circumstances surrounding the procurement or proposed procurement. This includes (1) the seriousness of the agency's procurement deficiency, (2) the degree of prejudice to the other parties and the integrity of the procurement system, (3) the extent of performance, (4) the cost to the government, (5) the urgency of the procurement, and (6) the potential impact of any GAO recommendation upon the agency's mission.

Along with its recommendations sustaining the protest, GAO can also recommend that the agency conducting the procurement pay to the protester the costs of filing and pursuing the protest, including reasonable attorneys' fees; the fees for consultants and expert witnesses; and the expenses of preparing the bid or protest. When GAO recommends that an agency pay costs, the agency is required by statute to either pay the costs promptly, or report to GAO its reasons for not paying. The agency is also required to attempt to reach an agreement with the protester on the costs to be paid. If agreement cannot be reached, the protester can request that GAO recommend to the agency an amount to be paid.

Legal Effect of GAO Recommendations

Even when GAO finds that the agency violated federal procurement law and sustains the protest, however, the agency is not legally required to implement the recommendations in GAO's decision. This is because GAO is a legislative branch agency and cannot constitutionally compel executive branch agencies to implement its recommendations because of the separation of powers doctrine.

Agencies typically fully adopt GAO recommendations, nonetheless, as Table 3 illustrates. According to GAO's annual reports to Congress, in only seven cases between FY2001 and FY2011 did an agency decline to fully adopt GAO's recommendations. The number of cases is comparatively larger in FY2012 and FY2013. However, all but one of the cases reported in these two years involved the same issue of statutory interpretation, upon which the federal courts disagreed with GAO and which the Supreme Court is scheduled to hear in its October 2015 term. Thereafter, the number of cases in which an agency declined to follow GAO's recommendations declined to one in each of FY2014 and FY2015.

The high degree of agency deference to GAO recommendations arguably reflects the scrutiny that Congress gives to agency decisions not to fully implement GAO recommendations. By statute, agencies have 60 calendar days within which to fully adopt GAO recommendations. Any agency that does not do so is required by statute to promptly notify GAO, which is then to notify four congressional committees. Once aware that an agency is not fully adopting GAO's recommendations, Congress could exercise oversight or take legislative action compelling agency compliance, if it so chooses.

Compliance with GAO Precedent or Recommendations as a Violation of the Administrative Procedure Act

Compliance with GAO precedent or recommendations does not necessarily immunize the agency from all future legal challenges to or liability for its actions. Since 2007, the Court of Federal Claims has issued several decisions which suggest that an agency could be found to have acted arbitrarily, capriciously, and in abuse of discretion, in violation of the Administrative Procedure Act (APA), by following GAO precedents or adopting GAO recommendations. For example, in Geo-Seis Helicopters, Inc. v. United States , the court found that the Military Sealift Command violated the APA by relying on GAO precedent allowing agencies to issue amendments that extend the bid closing date after such date has passed. According to the court, this precedent was contrary to the "late is late" rule of Federal Acquisition Regulation Section 52.215-1(c)(3)(ii)(A), and the contracting officer's reliance on this precedent "render[ed] arbitrary her decision to accept [the winning bidder's] first and second revised proposals." Similarly, in Grunley Walsh International, LLC v. United States , the court found that GAO's interpretation of the statutory business-volume requirement for bidders on embassy construction contracts was "irrational because it misread both the actual language of the statute and the legislative history," and the State Department acted irrationally in adopting this interpretation.

Although GAO decisions had been reversed in other cases, prior courts had not so explicitly linked following GAO's recommendations with violations of the APA. Geo-Seis Helicopters , Grunley Walsh , and related cases thus highlight agencies' dilemmas in complying with CICA more clearly than previous cases did. Failure to fully implement GAO recommendations triggers reporting to Congress and possible congressional oversight, while complying with certain GAO recommendations that courts later determine were irrational could leave agencies vulnerable to charges of having acted arbitrarily.

Reconsideration and "Appeal" of GAO Decisions

Much like agencies can decline to fully implement GAO recommendations that they are dissatisfied with, protesters who are dissatisfied with GAO decisions can also potentially avoid them by requesting reconsideration from GAO, or filing a bid protest with the Court of Federal Claims, effectively appealing a GAO decision. (Disappointed agencies and intervenors could also request reconsideration from GAO, but need not resort to filing in the Court of Federal Claims because the agency can always decline to follow the GAO recommendations.)

Reconsideration of GAO Decisions

Any party to a GAO protest can request reconsideration of GAO's decision from GAO. Such a request must be made within 10 calendar days after the basis for reconsideration is known or should be known, whichever is earlier. Pursuant to its regulations, GAO does not consider requests for reconsideration that lack detailed statements of the factual or legal grounds upon which reversal or modification is sought, "specifying any errors of law made or information not previously considered." These regulations also provide for GAO to summarily dismiss any reconsideration request that fails to state valid bases for reconsideration or are untimely.

Filing a request for reconsideration with GAO does not stay contract award or performance like filing a bid protest with GAO does.

As Table 4 illustrates, GAO receives far fewer requests for reconsideration than bid protests each year, and GAO seldom changes its recommendations upon reconsideration.

"Appeal" of GAO Decisions

In addition to requesting reconsideration from GAO, disappointed protesters can effectively "appeal" GAO's decisions to the Court of Federal Claims by filing suit alleging that the agency's procurement activities were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law" in violation of the Administrative Procedure Act (APA). The focus of the suit in the Court of Federal Claims is the agency's procurement activities, not GAO's decision per se . However, GAO's decision makes up part of the agency record that is reviewed by the Court of Federal Claims, and the Court of Federal Claims has historically given some deference to GAO decisions on questions of fact.

In reviewing the agency's action, the court does not substitute its judgment for that of the agency. Rather, it looks at the agency's record of the procurement to determine whether the procurement official's decision lacked a rational basis, or the procurement procedure involved a violation of law or procedure. In determining whether the procurement official's decision had a rational basis, the court considers whether the agency (1) relied on factors Congress did not intend it to consider in making its decision; (2) failed to consider an important aspect of the problem; or (3) offered an explanation for its action contrary to the evidence before it, or so implausible it could not be ascribed to a difference of opinion or the product of agency expertise.

A Court of Federal Claims protest, even one "appealing" a prior GAO decision, does not trigger an automatic stay of the agency's award of the contract or authorization of performance under it. Rather, a bid protester in the Court of Federal Claims must file and prevail upon a motion for a temporary restraining order or preliminary injunction to effect a delay of the agency's procurement actions similar to that generally occurring automatically when a GAO protest is filed.