Protests: Step by step
You've filed a protest. Now what?
- By Matthew Weigelt
- Oct 26, 2009
Officials at the Transportation Security Administration have started compiling documents that chart the process they followed to award a $500 million infrastructure contract to Computer Sciences Corp. That's a necessary step as an agency responds to contract protests, such as those two companies filed against TSA when they lost the contract.
Unisys Corp., the incumbent contractor, and General Dynamics One Source LLC filed individual protests on Oct. 13 against the Homeland Security Department agency's decision to award the lucrative contract to CSC. The contract is for information technology infrastructure services to TSA under its Information Technology Infrastructure Program (ITIP). A CSC spokesman recently said the company had been working on a 90-day transition plan that has now ground to a halt because of the protests.
So what happens after companies protest such contracts?
Once a company files a protest, the Government Accountability Office, which reviews the merits of bid protests, calls the agency to inform it of the protest. “That telephone call is important because it is the official notice that may trigger a statutory stay of the award or performance of a contract pending GAO’s decision,” according to a GAO document on bid protests.
The notice from GAO also requires agency officials to file a report within 30 days, sending copies to GAO’s attorneys and to the protestor. The report must include all relevant documents and an explanation of the agency’s position. The report generally includes the relevant facts, an estimated contract value, a memo explaining the agency's position regarding procurement law, a statement on the statutory stay on the contract, and a list of documents.
The protesting company then has an opportunity to file written comments on the report.
GAO may still need to gather more information though. After the report and responses are turned in, GAO may schedule conferences with the different parties to resolve procedural matters or to get additional details to help in its review. GAO may also hold a hearing to settle factual and legal issues raised during the protest.
After the record is complete, GAO will consider the dispute and issue a decision. GAO issues its decisions no more than 100 days from the date the protest was filed. According to a Congressional Research Service report from February, GAO officials said they have never missed that deadline.
In its decision, GAO may sustain the bidding company’s protest against the agency. A sustained protest means that the agency violated a procurement statute or regulation and that the violation hurt the protestor's chances in winning the contract. GAO then will recommend ways for the agency to correct things.
On the other hand, GAO may deny the protest or simply dismiss it altogether without reviewing the case.
Agencies generally following the recommendations, or corrective actions, in GAO's decision, which can include re-evaluating bids, gathering more information from bidders or even scrapping the contract entirely and re-opening the competition.
According to the CRS report, the number of protests has increased in recent years. Not counting protests from GAO's expanded jurisdiction, protests have increased steadily from approximately 1,150 in fiscal 2001 to more than 1,550 in fiscal 2008, an increase of 37 percent, the report states. From fiscal 2001 to 2008, GAO sustained an average of 5 percent of bid protests.
As TSA, Unisys, General Dynamics, and CSC, await GAO decision. A deadline of Jan. 21, 2010, has been set for a decision, according to GAO’s bid protest docket.