Federal Government Contract GAO Bid Protest
(Five-Day Letter)

Summary

This template can be used by a protesting bidder (non-winning bidder) to respond to a document request by the U.S. Government Accountability Office (GAO) in a federal government contract bid. It represents a "five-day letter" in accordance with requirements under 4 C.F.R. § 21.3(c). This template includes practical guidance, drafting notes and alternate clauses. This template is designed to provide reference to counsel on how they could anticipate a contracting agency's response to requests for documents and in what form(s) the response will take. Automatic Stay Under 31 U.S.C. § 3553(d)(4)(A)(ii) and (d)(4)(B), bid protests filed at the GAO invoke an automatic stay of procurement during the pendency of any protest made by a non-winning bidder "if" the federal agency awarding the contract receives notice from the protester requesting the stay within five days of the Agency's debrief to the protestor. This five-day requirement is not to be confused with the so called "Five-Day Letter" described below. A protest can challenge not only the selection of the winning bidder, but also the method that the government employed in choosing the winning bidder (for example, by limiting the pool of potential bidders). (See, e.g., NIKA Techs., Inc. v. United States, 987 F.3d 1025 (Fed. Cir. 2021) for a discussion of the five-day timeline for requesting a stay where a protestor of a DoD contract award has had an enhanced debriefing with the DoD.) Title 31 U.S.C. §§ 3551–3556 and 4 C.F.R. pt. 21 set forth the specific guidelines and procedures for making bid protests to the GAO. This template is designed to provide reference to counsel on how they could anticipate a contracting agency's response to requests for documents and in what form(s) the response will take. What is a Bid Protest? A bid protest is a challenge to a government agency's award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract. When a bidder is not selected as the bid winner, the non-winning bidder may "protest" not having been selected. Protests may be filed against procurement actions made by federal agencies. This authority is provided to the General Accounting Office (GAO), where the protest must be sent, under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. §§ 3551-3557. Also see GAO, Bid Protests and Appropriations Law FAQ "What kinds of bid protests can be filed at GAO" and GAO, Bid Protests at GAO, A Descriptive Guide and Construction Law P 2.03, "Bid Protests and Other Remedies for Procurement Improprieties." Protests can be filed (1) with the procuring agency, (2) with the GAO, or (3) with the Federal Court of Claims. This template focuses on a required letter that the procuring agency must provide to the GAO where the protest has been directed to the GAO—which is the most common protest forum. Who Can File a Protest? Only "interested parties" may file protests. In the case of a solicitation challenge, an interested party is generally a potential bidder for the contract. In the case of a contract award challenge, an interested party is generally an actual bidder that did not win the contract. In addition, other factors, such as the bidder's standing in the competition and the nature of the issues raised may affect whether it qualifies as an interested party. For more information, see our Bid Protest Regulations (4 C.F.R. § 21.0(a)) and Bid Protests at GAO: a Descriptive Guide. When Must a Protest be Filed? In general, a protest challenging the terms of a solicitation must be filed before the time for receipt of initial proposals. A protest challenging the award of a contract must be filed within 10 days of when a protester knows or should know of the basis of the protest (a special case applies where, under certain circumstances, the protester receives a required debriefing). For more information, see Bid Protest Regulations (4 C.F.R. § 21.2) and Bid Protests at GAO: a Descriptive Guide. What Happens after a Protest Has Been Filed? If the protest is not dismissed for procedural reasons, the applicable government agency must, within 30 days of the filing of a protest, provide a report addressing the protest arguments. 4 C.F.R. § 21.3(c). The protester must file comments responding to the agency report within 10 days of receiving the report (failure to file comments will result in dismissal of the protest). After the comment period, the GAO may request additional filings from the parties, conduct alternative dispute resolution, or hold a hearing. For more information, see Bid Protest Regulations (4 C.F.R. § 21.3), Bid Protests at GAO: a Descriptive Guide, and Bid Protest Timeline Flowchart (GAO). Corrective Action Corrective action is an agency's voluntary decision to address an issue in response to a protest. Corrective action can occur at any time during a protest. An agency's corrective action may involve a re-evaluation of proposals, a new award decision, an amendment to a solicitation, or other actions. The GAO will typically dismiss a protest if an agency takes corrective action that resolves protest arguments or provides the relief sought by the protester. The Bid Protest Process Contrasted with agency level protests where the entire protest file usually only consists of the protest and the agency decision, when protesting to the GAO, there can be many filings following the filing of the initial protest and before the GAO decides. The following may occur: • Parties may join the case • A protective order may be issued • A partial or summary motion to dismiss all or part of the protest may be issued • Document production may be requested: o By protester: The protester can submit, in its initial protest, a list of documents they want the government agency to produce which they believe will aid the GAO in making a proper decision. • Agency response to the protest: o Agency. The government agency will file an "agency report" to the GAO. This consists of: - The contracting officer's statement of facts (COS) - The agency's legal memorandum (LM) responding to the protest grounds, and the relevant documents from the agency's contract file o Protester. The protestor may file a supplemental protest based on the agency report and comments on the agency report. If a protester learns of the existence or relevance of additional documents that they believe the GAO needs to consider its decision in the protest, a supplemental document request may be filed under 4 C.F.R. § 21.3(g). The "Five-Day Letter" – The "Five-Day Letter," as it is commonly known, is a Federal Agency's response to a document request by a protester in a bid protest. When a protestor makes a document request to an agency pursuant to a bid protest, the agency must provide a response to the protestor with five days. This is referred to as the "5-Day Letter." The purpose and requirements of the five-day letter can be found in 4 C.F.R. § 21.3(c). The five-day letter is, in essence, nothing more than a response to the protesting party by a federal agency attorney to a request for documents in a U.S. Government Accountability Office (GAO) bid protest. A five-day letter must address: • Whether the requested documents exist or not • Which of the documents (or portions of) the agency intends to produce • Which of the documents (or portions of) the agency intends to withhold —and― • The basis for withholding and documents (or portions of). 4 C.F.R. § 21.3. The GAO has now required protesting parties to file their bid protests through the Electronic Protest Docketing System, or EPDS. The GAO will post its correspondence to all parties through EPDS. Agency reports and responses, to include the five-day letter, will be submitted through EPDS. Structure of the Five-Day Letter • Responses. Responses will either be in the affirmative or the negative. The agency's attorney's responses will also be numbered either by how the protestor's request listed the documents or, failing that, by how the counsel's response deems fit. For objections, they should be numbered, and each objection should be limited to one paragraph. General objections may be made, but without sufficient reasoning, each objections runs the risk of the GAO requesting for additional information and/or forcing the agency to produce the document along with the report regardless of objection. A general objection should be the basis by which specific objections can be drawn from or support. • Withholding/Redaction. The agency will decide on what documents it feels necessary to withhold or redact. With its general objection, the agency draws specific objections from it based upon relevance, vagueness, ambiguity, or privilege. For a listing of related content, see Federal Government Contracts and Federal Government Contracting Resource Kit. See Bid Protest Timeline Flowchart (GAO) for reference to the five-day letter within the bid protest process. Also see GAO, Bid Protests at GAO, A Descriptive Guide and Construction Law P 2.03, "Bid Protests and Other Remedies for Procurement Improprieties" and Bid Protests in Federal Government Contracts (GAO). For a listing of federal government contracting resources, see Federal Government Contracting Resource Kit.