Background - Practices (Details)

Bid Protest Timelines

Timelines for filing a bid protest are tight. Deadlines can impact both your ability to secure a stay of a contract award or performance and whether your protest is dismissed as untimely. Additionally, the forum in which you chose to file your protest can materially impact the protest filing deadline, whether briefing is necessary to receive a stay, the substance of your allegations, and the outcome of your protest. 

To help you navigate these uncertain waters, Crowell & Moring is pleased to present an interactive roadmap of U.S. Government bid protest timelines. This interactive feature is not intended to be, nor can it substitute for, legal advice.

Simply follow the prompts below that will lead you to your area of interest, or review a one page overview of the protest timelines covered in this feature.

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    Click factors above to go back and change.
    Please answer some basic questions about the procurement you are considering protesting. The protest timeline navigator will then provide you with relevant deadlines. Each procurement has its own unique facts and circumstances and this timeline is not intended to provide legal advice. If you are considering filing a protest, you should confer with counsel as soon as possible to ensure all required deadlines are met and the appropriate forum is selected.*
    *Click here for additional guidance regarding FAR Part 16 task or delivery order procurements.
    Select which circumstance is most applicable to your current situation:
    I want to challenge the terms of a solicitation or other ground rules of a procurement.
    Solicitation Challenge
    Select which circumstance is most applicable to your current situation:
    Initial proposals are not yet due.
    Proposals not yet due

    Protests relating to the terms of a solicitation must be filed prior to the initial proposal or quotation submission deadline.

    Protests filed prior to award at the Agency level or with GAO will trigger an automatic stay of award. Protests filed with the Court of Federal Claims do not trigger an automatic stay and require a protester to either request (and potentially litigate) temporary and preliminary injunctive relief or negotiate a voluntary stay from the agency.

    Initial proposals have been submitted and offerors will be allowed to submit revised proposals.
    Proposals submitted; revisions allowed

    Protests relating to the terms of a solicitation that has been amended after proposal submission should be filed prior to the next proposal submission deadline.  Only challenges to the new/revised terms made as part of the amendment can be raised.

    Protests filed prior to award at the Agency level or with GAO will trigger an automatic stay of award. Protests filed with the Court of Federal Claims do not trigger an automatic stay and require a protester to either request (and potentially litigate) temporary and preliminary injunctive relief or to negotiate a voluntary stay from the agency.

    Proposals have been submitted and there is currently no plan to allow submission of revised proposals.
    Proposals submitted; revisions not allowed

    When a solicitation is amended after submission of proposals and offerors will not be allowed to revise their proposals, any protest of solicitation improprieties must be filed within ten days after the alleged impropriety is known or should have been known at either GAO or the Agency level. There is no specific time limit for filing a protest at the Court, but the Court will apply equitable/fairness principles in deciding whether the protest is timely.

    Protests filed prior to award at the Agency level or with GAO will trigger an automatic stay of award. Protests filed with the Court of Federal Claims do not trigger an automatic stay and require a protester to either request (and potentially litigate) temporary and preliminary injunctive relief or to negotiate a voluntary stay from the agency.

    I submitted a proposal and was eliminated (e.g., excluded from the competitive range), but no award has been made yet.
    Proposal eliminated

    If you have been eliminated from a competition prior to award, and if you are entitled to a debriefing (click here to determine if you are entitled to a debriefing), then you have three (3) days from your notice of elimination to request a pre-award debriefing and the protest must be filed within ten (10) days of the first offered debriefing date at either the Agency or GAO.

    Otherwise, the protest must be filed within ten (10) days from the date you knew or should have known of your grounds for protest.

    Protests filed prior to award at the Agency level or with GAO will trigger an automatic stay of award. It is important when requesting your debriefing from the Agency that you request a pre-award debriefing in this situation in order to ensure that you receive the debriefing prior to award and have the opportunity to obtain a stay of award.

    If you decide to file at the Court of Federal Claims, you should file prior to award. And, because there is no automatic stay at the Court, you should request (and litigate if necessary) a stay of award until your protest is resolved.

    I submitted a proposal and have received the notice of award.*
    Post-Award
    A post-award protest is the most common type of protest. To continue, select which circumstance is most applicable to your current situation:
    * Note: A notice of intent to award (for set aside contracts) is not the same as a notice of award and does not trigger the bid protest clock.
    I have already requested and/or received my required debriefing.
    Debriefing requested/received

    If you are sure that you have requested and/or received a required debriefing (for example, the procurement was conducted using FAR Part 15 competitive procedures, you timely requested your debriefing, you accepted the first debriefing date offered, etc.), then you should fall within the debriefing exception to the otherwise strict GAO and Agency-level timeliness rules. (Click here if you are uncertain whether your debriefing is required.) That means you must file your GAO or Agency-level protest within ten (10) days of the closing of your required debriefing.

    For Department of Defense (DoD) procurements that utilize enhanced debriefing procedures, your debriefing will be considered open until the agency responds to any additional questions that you provide in writing within two (2) business days of your required post-award debriefing. You must then file your GAO or Agency-level protest within ten (10) days of the agency’s response to your additional questions. If you do not timely submit any additional questions, then you must still file your protest within ten (10) days of the receipt of your required debriefing. Click here for further information on these new DoD procedures.

    If you file your GAO or Agency-level protest within five (5) days of your debriefing or ten (10) days of award (whichever period is longer), then you are also entitled to an automatic stay of performance until your protest is decided.

    There is no deadline for filing a timely post-award protest at the Court of Federal Claims, but the Court will consider any undue delay (i.e., laches) when deciding whether a protest is timely. There is no entitlement to an automatic stay of performance at the Court. Thus, if you wish to stay performance of the contract, you will have to either request (and litigate if necessary) temporary and/or preliminary injunctive relief or negotiate a voluntary stay from the agency.

    If you are unsure of your protest grounds, where you stand on the timeline, or which forum is best, contact a Crowell & Moring attorney for further information.

    If the award at issue is for a task or delivery order under a FAR Subpart 16.5 procurement (but not a Federal Supply Schedule FAR Part 8 procurement), click here for important information that may impact your ability to file a protest.

    I am not entitled to a required debriefing (e.g., because it’s a FAR Part 8 procurement).
    Not entitled to debriefing

    If you are sure that you are not entitled to a required debriefing (for example, the procurement was conducted under FAR Part 8, you did not timely request your debriefing, you did not accept the first debriefing date offered, etc.), then you do not fall within the debriefing exception to the timeliness rules. (Click here if you are uncertain whether your debriefing is required.)

    You must file your protest within ten (10) days of the date you knew or should have known of the grounds for protest if you file at the Agency or GAO.

    You must also file your protest at the Agency or GAO within ten (10) days of award to trigger the automatic stay of performance.

    There is no deadline for filing a timely post-award protest at the Court of Federal Claims, but the Court will consider any undue delay (i.e., laches) when deciding whether a protest is timely. There is no entitlement to an automatic stay of performance at the Court. Thus, if you wish to stay performance of the contract, you will have to either request (and litigate if necessary) temporary and/or preliminary injunctive relief or negotiate a voluntary stay from the agency.

    I do not know if I am entitled to a required debriefing.
    Not sure if entitled to debriefing

    To determine if you are entitled to a debriefing you must review the procedures used to conduct the procurement.

    In FAR Part 15 procurements, the agency is required to provide you with a debriefing if you request it within three (3) days of receiving notification of contract award and you accept the first offered debriefing date.

    Debriefings are also required for task and delivery orders over $5 million where you request the debriefing within three (3) days of receiving notification of award and you accept the first offered debriefing date.

    Debriefings are not required in procurements conducted under FAR part 8.

    Generally, a debriefing is not required for procurements conducted under FAR Part 12. If, however, your procurement also utilized FAR Part 15 procedures, a debriefing may be required.

    Whether a debriefing is required is one of the trickiest questions in bid protest litigation. If you are unsure whether a debriefing is required, contact a Crowell & Moring attorney for further information.

    I am an awardee of a multiple award contract and want to challenge awards to other offerors.
    Challenge other offerors

    In rare circumstances, when an agency makes multiple awards, a successful awardee may wish to protest an additional award to a competitor, under the theory that the competitor’s award was improper and unnecessarily dilutes the work that would be provided to the awardee.

    If you are such an awardee, GAO has generally held that it will not hear such protests, but you may be able to protest at the Court of Federal Claims. There are nuanced requirements that must be met to demonstrate standing as an awardee. Contact a Crowell & Moring attorney for further information.

    How do I know if I am entitled to a required debriefing?

    Whether a debriefing is required will typically depend on the type of procurement at issue. Thus, to determine if you are entitled to a debriefing, you must review the solicitation carefully. For example:

    In FAR Part 15 procurements, the agency is required to provide you with a debriefing if you request it within three (3) days of receiving notification of contract award1 and you accept the first offered debriefing date.

    Debriefings are also required for task and delivery orders over $5 million where you request the debriefing within three (3) days of receiving notification of award and you accept the first offered debriefing date.

    Debriefings are not required in procurements conducted under FAR part 8.

    Generally, a debriefing is not required for procurements conducted under FAR Part 12. However, if a FAR Part 12 procurement utilizes FAR Part 15 competitive procedures, then a debriefing may be required. In that case, you must request a debriefing within three (3) days of notification of contract award and you must accept the first offered date.

    Whether a debriefing is required is one of the trickiest questions in bid protest litigation. If you are unsure whether you are entitled to a required debriefing, contact a Crowell & Moring attorney for further information.

    1. For procurements with required debriefings (FAR Part 15 or otherwise), if you are eliminated before award then you must request your debriefing within three (3) days of receiving notice that you were eliminated, you must specifically request a pre-award debriefing, and you must accept the first offered debriefing date.

    Special Information for FAR Part 16 Task or Delivery Order Procurements (but not FAR Part 8 Federal Supply Schedule Procurements)

    Task and delivery orders procured under FAR Part 16 may only be protested under limited circumstances.

    For example, the Court of Federal Claims does not have jurisdiction over such protests unless the protester alleges an increase in the scope, period, or maximum value of the contract under which the order is issued.

    GAO, meanwhile, has jurisdiction over most task and delivery order protests where the value of the order at issue is either over $25 million (for Department of Defense procurements) or over $10 million (for civilian agency procurements, even if conducted for the ultimate benefit of a Defense agency). For task or delivery order protests below those thresholds, however, GAO only has jurisdiction if the protester alleges an increase in the scope, period, or maximum value of the contract under which the order is issued.

    Calculating the value of task or delivery orders for GAO jurisdiction, and assessing which venues might have jurisdiction can be difficult. Contact a Crowell & Moring attorney for further information.

    If your procurement involves a contract with the Department of Defense (DoD) or a DoD agency and a post-award debriefing is required under FAR 15.506, you have the right to submit additional questions to the agency within two (2) business days of your required debriefing. The agency will then have five (5) business days to provide a written response to those questions.

    If you timely submit additional questions under this procedure, your debriefing will remain open until the agency provides its response. This means that for purposes of filing a GAO or Agency-level protest, your protest will be timely if filed within ten (10) days of the agency’s response to your additional questions and, if your protest is filed within five (5) days of the agency’s response, the agency must stay performance of the contract.

    If you are unsure about whether these enhanced procedures apply to your procurement or how you can take advantage of them, contact a Crowell & Moring attorney for further information.