Document Production Considerations in GAO Bid Protests

The Government Accountability Office (GAO) is a legislative agency that performs a quasi-judicial function in resolving government contracts bid protests. Created under the Budget and Accounting Act of 1921, the GAO has been issuing bid protest decisions since a few years after its inception. The Competition in Contracting Act of 1984 eventually codified GAO’s bid protests jurisdiction. Under its bid protest function, the GAO adjudicates alleged violations of federal procurement rules and regulations during the award, proposed award, or the solicitation of a government contract. One of the advantages of filing a bid protest at the GAO is the condensed 100-day timeline within which the GAO generally resolves bid protests. This relatively short timeline of protest resolution means that contractors can usually get their protests resolved quickly, efficiently, and cost-effectively. However, this shortened 100-day protest resolution timeline means that protestors at the GAO must adhere to strict timeliness rules and contend with a document production process that is much shorter and more narrowly focused than the traditional discovery process at federal courts.

In a GAO protest, the document production process begins with the filing of the protest, in which the protestor typically includes a request for specific documents relevant to the protest grounds. The government agency subject to the protest then has 30 days from the receipt of the notice of the protest to file an agency report. This agency report contains a list and a copy of all documents relevant to the protest. Such documents generally include the solicitation, the protestor’s bid or proposal, duly redacted bid or proposal being considered for award, evaluation documents, and any other documents relevant to the grounds of protest. Pursuant to 4 C.F.R. § 21.3(d), the agency report includes a statement of the relevant facts described by the contracting officer (CO), including an estimate of the total contract value. Additionally, the agency report includes the Government’s response to the protest contained within a memorandum of law.

In cases where the initial protest document contains a list of documents requested for production by the protestor, the agency must file what is known as a “five-day letter” addressing the protestor’s document production request. Agency counsel must file this letter five days before the agency report is due and indicate which documents the agency intends to produce in the agency report. At this juncture, the protestor must act swiftly in responding to the five-day letter, especially if the agency decides to withhold production of some of the requested documents. The protestor must review the agency’s reasons for withholding production and respond with any objections to the scope of the agency report within two days. Depending on the specific facts involved in the protest, the agency may withhold the production of the requested documents on one or several grounds. Some common reasons cited by the Government for withholding document production are provided below. Also included is a general response strategy for affected protestors.

o Request for Document Production is Overbroad

Since the scope of document production is limited at GAO compared to the federal courts, the agency may sometimes object to the protestor’s request for document production as overly broad. In responding to the agency’s decision to withhold document production in such situations, protestors should demonstrate the direct relevance of the requested documentation to the protest. For instance, the requested documents may be relevant in proving a factual contention or relevant to a point of law showing that the agency violated a procurement regulation. In responding to the agency’s contentions that the document request is overbroad, the protestor may agree to narrow its request or demonstrate why the request is reasonable and not administratively burdensome for the agency.

o Request for Document Production is Not Relevant to the Stated Grounds of Protest

Depending on the specific issues raised in the protest, the agency may withhold documents it considers irrelevant to the stated grounds raised by the protestor. In responding to the agency’s decision to withhold such documents, contractors should provide reasons demonstrating the relevance or potential relevance of the requested documents to the grounds of protest. Furthermore, protestors may point out that in addition to producing solicitation, bid or proposal, and evaluation documents, the agency is also required to produce any other documents relevant to the protest grounds. If applicable, protestors may also show that the requested documents are relevant because they have the tendency to lead to the discovery of information relevant to the stated protest grounds.

Protestors choosing to file their bid protests at the GAO benefit from the shortened timeline of protest resolution, which is generally more cost-effective and less burdensome to the overall procurement. However, this relatively quick protest resolution process means that protestors must settle for a document production process that is not only expedited but also narrower in scope. Despite this, protestors elect to file their protests at the GAO, considering the forum’s special focus on resolving government contracts bid protests. If protestors are unsuccessful at the GAO due to limits on document production, they may elect to file a second bite protest at COFC, where formal discovery rules and procedures apply. By understanding the timeframes and scope of document production at the GAO, prospective protestors can adequately assess whether filing their protest at the GAO represents an advantage in their circumstances.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.

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Document Production Considerations in GAO Bid Protests

TILLIT LAW Bid Protests Insights