On November 3, 2016, the United States Court of Federal Claims (COFC) issued a decision addressing the timeliness rules that trigger a stay of performance during the pendency of a GAO protest. The decision is Favor Techconsulting, LLC v. United States, No. 16-1365C, 2016 WL 6543559, (Nov 3, 2016). For those unfamiliar with stay requirements, the Competition in Contracting Act (CICA) mandates that the government stay performance of a protested award of a government contract when an agency received notice from GAO of a protest within 10 days of award or five days of the debriefing date offered for a timely requested and required debriefing. 31 U.S.C. § 3553(d)(3). This means the protest must both be filed at GAO and the GAO must notify the agency of the protest by the required deadline.
In previous decisions issued by COFC, the court has addressed what happens when the last day falls on a weekend or federal holiday. One judge construed CICA as requiring notice to the agency on the last business day prior to the deadline; another judge held that if the last day fell on a weekend or holiday, then notice could be given on the next business day. See Unisys Corp. v. United States, 90 Fed. Cl. 510, 518 (2009) (holding that GAO must notify agency of protest within 10 calendar days of award); cf. Dyncorp Int’l, LLC v. United States, 113 Fed. Cl. 298, 299 n.1 (2013) (holding that, when 10th day falls on a weekend, stay will nonetheless apply when GAO gives notice on the next business day). Seasoned bid protest practitioners advise their clients to proceed with caution – if in doubt, file on the earlier date!
In Favor Techconsulting, LLC, the court addressed a different issue – under what circumstances should the CICA stay apply when the award document is apparently erroneously dated and the actual award preceded notice to the protester? The facts of the case are unique. The government contended that actual award was made on September 26, but the award document signed by the contracting officer was dated September 27. In addition, notice of the award was provided to the protester on September 27 and also stated the award was made on September 27. The protester filed its protest with GAO, and GAO notified the agency of the protest, within 10 calendar days of September 27. However, this was 11 days after the actual award. The agency argued that the CICA stay did not apply based on the literal language of CICA--that is, the protest was not filed within 10 days of award. According to the agency, the actual award was made on September 26, despite the fact the award document was dated September 27. The protester relied heavily on the fact that the award document was dated September 27, and further argued it had no way of knowing that award was made on an earlier date, noting there was no online posting or other award notice dated other than September 27. The court agreed with the protester and held that the CICA stay applied.
Potential protesters should not read too much into this decision. The decision does not stand for the broad proposition that the CICA stay will apply, in all instances, when a protest is filed and GAO gives notice to the agency within 10 days of when the protester was provided notice of award. Rather, the decision addressed a very narrow and unique set of facts: the award apparently was made on one date, but the award document contained a later date and the protester had no way of knowing of an earlier award date.
Thus, the take-away from this decision is that it has not altered the requirements for a CICA stay. A stay remains required if a bid protest is filed at GAO and the agency receives notice of the protest from GAO within 10 days of award. The court’s decision should not be too loosely construed, lest you miss your opportunity as a protester to secure the benefit of the stay.