When filing bid protests, contractors have two choices outside of the agency itself: the Government Accountability Office (GAO) and the Court of Federal Claims (COFC). There are significant differences in procedures, cost, timing, discovery, deadlines, and other considerations. In theory, both should interpret the Federal Acquisition Regulations (FAR) and related decisions the same way, but in practice, surprising differences of opinion or “splits” have arisen over the years.
For the following issues, COFC is the better venue for contractors. It may even provide contractors that filed first at the GAO a second bite at the apple, because it has looser deadlines for bid protests.
Are late proposals always late? GAO maintains a strict stance on the “Late is Late” rule. In other words, unless a bid submission arrives at the designated email inbox on time, the contractor is late and ineligible for award. See for example, Matter of: Guidehouse Inc., B-422115.2 (Jan. 19, 2024). GAO argues that it does not matter if the contractor sent the proposal email before the deadline, even if technical errors delaying the bid were the government’s fault. It only matters whether the proposal arrived in the Government’s inbox on time.
In contrast, COFC will consider whether the “Government Control” exception to the “Late is Late” rule applies. See eSimplicity, Inc. v. United States, 162 Fed. Cl. 372 (2022); Federal Acquisitions Service Team, LLC v. United States, 124 Fed. Cl. 690 (2016); Insight Systems Corp. v. United States, 110 Fed. Cl. 564 (2013). This exception can apply if a contractor sends its bid via email before the deadline and it arrives at a government server, but encounters technical issues, causing delays or a failure to reach the contracting officer’s inbox. COFC will usually consider these submissions as technically on-time and eligible for consideration, whereas GAO will not consider them at all.
Must contractors notify the agency of key personnel changes? COFC and GAO also disagree about whether contractors have a duty to notify procuring agencies of changes in key personnel. COFC holds that after proposal submission, offerors are not required to routinely update the government if key personnel become unavailable. See Golden IT, LLC v. United States, 157 Fed. Cl. 680, 705 (2022). A contractor need only to have a reasonable belief that the key personnel would be available “at the time of its quote.”
On the other hand, GAO requires offerors to make the agency aware of key personnel changes after proposal submission but before contract award. See Greenleaf Constr. Co., B-293105.18 (Jan. 17, 2006). Even GAO concedes that if the contractor lacks knowledge about whether the key personnel will be available, the contractor is not obligated to notify the agency. See NCI Information Systems, Inc., B-417805.5 (Mar. 12, 2020).
Are “wet ink” signatures required for bid bonds? For decades, GAO has said that bid bonds are defective if they do not have original “wet ink” signatures. See TJ’s Marine Constr. LLC, B-402227 (Jan. 7, 2010). COFC disagrees, arguing that GAO has misinterpreted its own previous decisions, creating a requirement for wet-ink signatures that never existed and was not rational. See Togiak Mgmt. Servs., LLC v. United States, 169 Fed. Cl. 83 (2023). The decision analyzed GAO’s earlier cases, concluding that they focused on “material alterations” to bid bonds, not whether the bid bond was photocopied.
Does the Christian Doctrine apply to solicitations? The Christian Doctrine is a rule that means legally required (mandatory) clauses must be read into contracts, even if they were accidentally left out. See G.L. Christian & Assocs. v. United States, 160 Ct. Cl. 1, 312 F.2d 418 (1963). While both GAO and COFC agree that these mandatory clauses are included in contracts, they disagree about whether they should be read into solicitations.
COFC has held that there is no relevant difference between a solicitation and a contract. See Transatlantic Lines LLC v. United States, 68 Fed. Cl. 48, 53 (2005). GAO argues that mandatory clauses cannot be read into solicitations. See, Matter of: Ncs/eml Jv, LLC, B-412277 (Jan. 14, 2016). GAO’s position has led to arguably inconsistent outcomes that favor whichever outcome the government prefers. When an agency wants to uphold a protested award, GAO will refer to the Christian Doctrine to avoid cancelling the procurement. See Gorman-Rupp Co., B-237429 (Jan. 4, 1990); Linda Vista Indus., Inc., B-214447 (Oct. 2, 1984). But GAO will also deny protests in similar situations where the agency argues a missing mandatory clause renders the solicitation defective. See Matter of: Orbis Sibro, Inc., B-418165.7 (Apr. 12, 2021).
Do contract awardees have standing to protest? Splits often arise when the contractor first takes their bid protest to the GAO and later to COFC for a second bite at the apple. This pattern continues with GAO’s categorical claim that contract awardees always lack standing to file bid protests. See Matter of: Nat’l Air Cargo Grp., Inc., B-411830.2 (Mar. 9, 2016). COFC has flatly rejected this conclusion, finding that an allegation of “violations of statutes and regulations governing the procurement process” may be enough to allow the protest to proceed. See Nat’l Air Cargo Grp., Inc. v. United States, 126 Fed. Cl. 281, 290 (2016).
Can contractors protest task order awards? In other instances, COFC has simply gone farther (so far) than GAO. The Federal Acquisition Streamlining Act (FASA) prohibits protests of task order contracts under $25 million. But in 2024, the Federal Circuit (COFC must follow Federal Circuit precedent) said that a protester could still protest if it was challenging a violation of regulations under the Tucker Act and not just the award of the task order. GAO has yet to hear a case on this point, and it is unclear whether it would follow suit.
Can contractors protest other transaction procurements? Similarly, GAO has been unequivocal that it will not hear protests over Other Transactions (OTs), because it claims it lacks jurisdiction. COFC, however, has entertained the possibility of reviewing these procurements, which are not subject to the normal federal regulations. See Indep. Rough Terrain Ctr., LLC v. United States, 172 Fed. Cl. 250 (2024). Specifically, COFC may consider reviewing an OT procurement protest if it involves a follow-on contract. This decision also indicated that COFC might have authority to hear OT protests if the government is seeking to procure “goods or services.”
Are discussions required for defense contracts over $100 million? In some cases, GAO and COFC arrive at the same conclusion, but get there differently. Consider whether the Army must equally engage in discussions with all contractors under DFARS 215.306. See IAP Worldwide Servs., Inc. v. United States, 159 Fed. Cl. 265, 314 (2022). Although COFC disagreed with GAO’s reasoning in Matter of: Sci. Applications Int’l Corp., B-413501 (Nov. 9, 2016), it acknowledged that it is a distinction without a difference and arrived at the same conclusion: Agencies should conduct discussions on contracts with a value of $100 million or greater.
David Timm is a government contracts associate at Fox Rothschild LLP. He helps contractors when work with the government goes wrong. His practice focuses on complex disputes, claims, and bid protests over federal, state, and local government contracts. Timm can be reached at dtimm@foxrothschild.com.