Bid protest deadlines at GAO, and the days that matter most

A strong protest ground is worthless if it is filed a day late. The Government Accountability Office dismisses untimely protests, and it rarely makes exceptions. Contractors who know the clock before an award decision arrives are in the best position to protect their rights.

Problems with the solicitation: before proposals are due

If the solicitation itself is the problem, such as an unduly restrictive requirement, an unclear evaluation scheme or a missing clause, the protest must be filed before the deadline for initial proposals (4 C.F.R. § 21.2(a)(1)). A defect added later by amendment must be protested before the next closing time. Contractors who submit a proposal and wait to see the result usually lose the right to complain about the terms.

Problems with the award: 10 days, with a debriefing exception

Most other protests must be filed within 10 days after the protester knew, or should have known, the basis for the protest (4 C.F.R. § 21.2(a)(2)). Days are calendar days. When the last day falls on a weekend or federal holiday, the deadline moves to the next business day.

There is one important exception. In a negotiated procurement where a debriefing is requested and required, a protest based on information learned in the debriefing may not be filed before the debriefing. It must be filed within 10 days after the debriefing is held. To get that benefit, the debriefing must usually be requested in writing within 3 days of the notice of award or exclusion (FAR 15.505 and 15.506). Missing that 3-day window can mean the 10-day clock started with the award notice.

The automatic stay: a shorter window

A timely GAO protest does not automatically stop contract performance. Under the Competition in Contracting Act, performance is suspended only if the agency receives notice of the protest from GAO within 10 days of award, or within 5 days after a required debriefing, whichever is later (31 U.S.C. § 3553(d)). Because the stay depends on when the agency gets notice, protesters who want the stay should file well inside that window, not on the last day.

In Department of Defense procurements, enhanced debriefing rights let an offeror submit follow-up questions within 2 business days. The debriefing is not considered closed until the agency answers in writing (DFARS 215.506-70). That can extend both the protest and the stay deadlines, but only if the questions are submitted on time.

After filing: more deadlines

The agency report is generally due 30 days after the protest is filed, and the protester’s comments are due 10 days after that. New grounds discovered in the report must be raised in a supplemental protest within 10 days. GAO issues its decision within 100 days.

Agency-level protests and the Court of Federal Claims

A contractor may protest to the agency first. If the agency denies it, a follow-on GAO protest must be filed within 10 days of learning of that adverse action (4 C.F.R. § 21.2(a)(3)). An untimely agency protest does not preserve a GAO protest.

The Court of Federal Claims has no fixed filing deadline. But under Blue & Gold Fleet, a contractor that does not challenge a solicitation defect before award generally waives it. Delay can also weaken a request for injunctive relief.

Practical steps

• Calendar the proposal deadline as the last day to raise solicitation problems.
• Request a debriefing in writing the same day an award or exclusion notice arrives.
• Decide before the debriefing whether you will seek a stay, so counsel can file within days.
• Keep the notice emails. Timeliness disputes often turn on when information was received.

If you have received an award notice and are weighing a protest, contact us promptly. In this area, a few days can decide the outcome.

This article is general information, not legal advice.