Examining the divergent timeliness rules for solicitation protests at the GAO and the Court of Federal Claims

A potential offeror that is dissatisfied with the terms of a solicitation may communicate with an agency regarding those terms prior to the close of the solicitation and request that the agency amend the terms or otherwise take action to address the potential offeror’s concern. Indeed, the Federal Acquisition Regulation (FAR) expressly encourages the offeror to do so. 

However, by communicating with an agency regarding solicitation terms and requesting a remedy, a potential offeror may inadvertently trigger the start of the protest period at the US Government Accountability Office (GAO) if it receives an adverse agency response. 

On the other hand, that same communication may also preserve the offeror’s ability to timely file a protest regarding the terms of the solicitation at the US Court of Federal Claims, including, in certain circumstances, after award. 

Originally published in the Public Contract Law Journal, this alert examines the divergent timeliness rules with respect to solicitation protests at those fora.