Sufficiently Stating Legal and Factual Grounds for GAO Bid Protests

August 21, 2025 Sareesh Rawat, Esq.

The Government Accountability Office’s (GAO) bid protest regulations require protesters to provide a detailed statement of the legal and factual grounds of protest. While the GAO does not require protesters to file formal briefs or other technical forms of pleadings or motions, protesters must nevertheless file concise and logically arranged protests that clearly state legally sufficient protest grounds. On July 14, 2025, the GAO submitted a proposal in response to Section 885 of the Servicemember Quality of Life Improvement and National Defense Authorization Act for Fiscal Year 2025, clarifying and enhancing its pleading standard. While this new pleading standard is not a significant change from the previous standard, it provides added clarification that protesters’ bare allegations are insufficient to meet GAO’s pleading requirements. Under this new standard, protesters must provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action. Stated another way, protesters must provide more than a bare allegation, such that the allegation is supported by some explanation and evidence that establishes the likelihood the protester will prevail in its claim. In practical terms, the GAO will continue to dismiss protests or specific allegations within that are based on speculation, factual inaccuracies, or flawed legal assumptions.

In B-423546, a bid protest decision issued on August 5, 2025, the GAO applied the new pleading standard to dismiss the protester’s speculative allegations concerning the agency’s evaluation of quotations. The Defense Logistics Agency (DLA) issued a delivery order for the acquisition of 1770 vehicle tire cross chains, used for various critical weapons systems. The protester raised several allegations against the issuance of the roughly $1 million delivery order. Among its allegations, the protester challenged the DLA’s evaluation of quotations as unreasonable because, according to the protester, the awardee had misrepresented its inventory stock when it submitted its quotation. According to the protester, the awardee did not have the necessary stock available from the supplier to fulfill the agency’s requirements because the awardee utilized the same supplier as the protester, and the protester had already procured the inventory quoted by the awardee from the supplier. In applying the new pleading standard, the GAO determined that the protester had not provided sufficient information to support its contention that the awardee had misrepresented its supply. Specifically, the protester had failed to provide evidence to support its contention that the awardee could not have obtained the cross chains through ordinary supply channels. Similarly, the protester provided no information or evidence to suggest that the awardee intended to use the same supplier as the protester. Even assuming the companies were using the same supplier, the protester had failed to provide information to support its allegation that it owned all of the supplier’s cross chain stock or that the supplier did not have sufficient inventory to supply the cross chains to multiple dealers. Under these facts, the GAO found the protester’s bare allegations to be speculative and, thus, factually and legally insufficient.

The new pleading standard does not represent a sea change in terms of protests arguments based on pure speculation. In B-420940.3; B-420940.4; B-420940.5; B-420940.6, a bid protest decision issued on December 12, 2022, the GAO dismissed some of the protester’s arguments about the evaluation of the awardee’s proposal as a preliminary matter even before the agency report was filed because the arguments were based on the protester’s speculation. The Centers for Medicare and Medicaid Services (CMS) sought to acquire enterprise portal services (EPS) through a best-value trade-off evaluation. The protester challenged the resultant ~$61.5 million task order award by calling into question the agency’s evaluation of several factors in the technical proposals. In the relevant protest grounds, the protester alleged that its proposal was superior to the awardee’s in several respects, including CMMI certification, SAFe lean agile principles, direct EPS experience, and SAFe team staffing. Before submitting its agency report, CMS requested a dismissal of some of the protest grounds for being based on speculation and, therefore, being factually and legally insufficient. The GAO agreed, noting that while the protester had relied upon content from the awardee’s website to support its protest allegations about CMMI certification and SAFe principles, it had based its other allegations on mere speculation regarding the contents of the awardee’s proposal and its proposed approach. Consequently, before addressing the merits of the protest, the GAO dismissed the speculative allegations, as they did not provide an adequate basis for the protest.

In B-423414; B-423414.2, a bid protest decision issued by the GAO on June 30, 2025, the protester’s allegations were dismissed because they were based on factual inaccuracies. A small business telecommunications contractor protested the actions of the Social Security Administration (SSA) in procuring toll-free telephone numbers and other telecommunications services. The protester alleged that the SSA had improperly made a sole-source award to Amazon Web Services (AWS) without publicizing or justifying its decision. Meanwhile, the agency pointed out that it had actually issued a task order to a different contractor under a blanket purchase agreement (BPA) that had been previously established against that contractor’s GSA schedule. The agency explained that the BPA was established to facilitate access to cloud computing services, and Amazon Connect was such a service. However, the award was not made to AWS. Consequently, the SSA requested dismissal because the protest was factually inaccurate. The GAO agreed with the agency and noted that not only did the SSA not make an award to AWS, but the award was also not made on a sole-source basis. As a result, the GAO found that the protest was based on faulty facts and dismissed the protester’s allegations.

In B-421948, a bid protest decision issued on September 27, 2023, the GAO dismissed the protest before the filing of the agency report because the protester’s allegations were found to be legally insufficient. The Department of Veterans Affairs (VA) issued the relevant request for proposals (RFP) for the acquisition of advanced life support and stretcher van transportation services. The protester who was the incumbent on the prior contract failed to submit a proposal. The protester alleged that it did not submit a proposal because it did not receive a notification of solicitation posting on SAM.gov. The VA requested dismissal, arguing that because the contracting officer (CO) had posted the solicitation on SAM.gov, the agency had satisfied its obligation to adequately publicize the requirement. Thus, the agency argued that the protester had failed to state a valid legal basis for the protest. The GAO noted that the CO had indeed posted the solicitation on SAM.gov, where it was fully accessible to the protester. Additionally, the protester failed to demonstrate why its allegations regarding the failure of the SAM notification function, even if true, constituted a violation of procurement law or regulation. The decision explained that while the SAM notification function was a useful feature, the protester’s reliance on it could not nullify its constructive knowledge of the solicitation. Consequently, the protest was dismissed because the protester’s allegations were found legally insufficient.

The GAO’s bid protest regulations require protesters to state a sufficiently detailed statement of legal and factual grounds to establish a reasonable potential that their protest allegations may have merit. Under the new pleading standard, protesters must provide, at a minimum, credible allegations that are supported by evidence and are sufficient, if uncontradicted, to establish the likelihood of the protester’s claim of improper agency action. The new standard is not a major change from the previous one for practical purposes. Protests containing allegations based solely on speculation, factual inaccuracies, or flawed legal assumptions are still likely to be dismissed, even before the government is required to file an agency report. Furthermore, contractors should be mindful that the GAO interprets its bid protest regulations as requiring protesters to set forth in their initial protests all known legal and factual grounds supporting their allegations. In other words, protesters are prohibited from advancing piecemeal presentation of evidence, information, or analysis. Thus, protesters are not only required to state a sufficiently detailed statement of protest grounds but must also present all known legal and factual information to support their allegations when submitting their protests. Doing so is critical because they may not have the opportunity to present additional details later if the GAO determines that the information was known or should have been known to them at the time of bid protest filing.

This Bid Protest Insight is provided as 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.

Related Insights

Preventing Protest Timeliness Issues in Federal Supply Schedule Procurements

October 29, 2024 Sareesh Rawat, Esq.

The Government Accountability Office (GAO) has strict timeliness rules for submission of bid protests. Under these timeliness rules, post-award protests must typically be filed no later than 10 days after the basis of the protest is known or should have been known, except when the debriefing exception applies. The debriefing exception, which does not apply to federal supply schedule (FSS) procurements, requires unsuccessful offerors to file their protests within 10 days of a required and requested debriefing. In General Services Administration (GSA) FSS procurements conducted under Federal Acquisition Regulation (FAR) subpart 8.4, unsuccessful offerors are only entitled to a “brief explanation.” Due to the terms being somewhat similar, contractors may confuse the “brief explanation” contemplated under FAR subpart 8.4 with the required and requested “debriefing” of competitive proposals. Such confusion may prove problematic as it can cause an unsuccessful offeror to miss the 10-day deadline to file their post-award protest at the GAO.

In B-422881, a decision issued on September 12, 2024, the GAO dismissed such a protest as untimely, reminding the protestor of the distinction between a required and requested “debrief” and a “brief explanation” under FAR subpart 8.4. The Navy’s Military Sealift Command issued the relevant FSS Request for Quotation (RFQ) for lodging negotiation and management services, requiring vendors to provide multiple extended-stay studio rooms in Mobile, Alabama. The RFQ contemplated a lowest-priced technically acceptable (LPTA) award and required offerors to submit their quotations on or before August 8, 2024. The protestor was notified that its quotation was unsuccessful on August 13 via the GSA eBuy system. On August 16, the government provided the protestor with a “brief explanation,” as required under FAR subpart 8.4. In the brief explanation, the Navy advised the protestor that its quotation was evaluated as technically unacceptable and was therefore ineligible for award. The brief explanation also specifically noted that it was not a debrief.

Protesting Proposal Rejections for Failure to Attach Representations & Certifications

November 10, 2024 Sareesh Rawat, Esq.

Solicitations for federal contracts and their included Federal Acquisition Regulation (FAR) clauses often direct contractors to complete representations and certifications relevant to the acquisition. Depending on the solicitation, contractors may have to complete and maintain certain representations and certifications in the System of Award Management (SAM) website or attach them to their proposals. Consequently, an offeror’s failure to complete or attach the required representations and certifications may lead to the rejection of its proposal for failing to follow solicitation instructions. When reviewing an agency’s rejection of a proposal as noncompliant for not completing or attaching the required representations and certifications, protest adjudicative forums such as the Government Accountability Office (GAO) will typically examine the record to determine whether the agency’s decision was reasonable and per the solicitation criteria and applicable statutes and regulations. Contractors in such situations should be mindful that if the solicitation does not expressly require the submission of certain representations and certifications with the proposal, the procuring agency may not then use the failure to attach those representations and certifications as a basis for rejecting their proposals.

Presumption of Constructive Notice Applicable to Published Procurement Actions

November 30, 2024 Sareesh Rawat, Esq.

Under the Small Business Act and the Office of Federal Procurement Policy Act, federal agencies must publish notices of proposed contract actions and modifications exceeding $25,000 on the System of Award Management (SAM) unless an exception listed in Federal Acquisition Regulation (FAR) 5.202 applies. In other words, the government must publish all notices, which the FAR requires to be published via the governmentwide point of entry (GPE), SAM.gov. The SAM.gov GPE is the single point where contractors and the public can electronically access government business opportunities. Importantly, once the government publishes the synopses of a procurement action on SAM.gov, contractors are presumed to have “constructive notice” of the action. Under the doctrine of constructive notice, a party is imputed knowledge of a matter, even if it does not have actual knowledge of the matter at issue. Thus, as long as the government publishes the notice of an action via SAM.gov, contractors or interested offerors may not cite a lack of actual notice as prejudicial because they are presumed to have constructive notice of the published procurement action.

Thus, when an offeror fails to find or view a notice or a solicitation posted by the contracting officer (CO) on SAM.gov, that offeror is precluded by the presumption of constructive notice from subsequently filing a protest alleging it was denied a fair opportunity to compete. In B-416623, a small business contractor alleged that it was denied an opportunity to compete for a Department of Agriculture solicitation for the acquisition of foreclosure legal services and related technical support. In its protest filed at the Government Accountability Office (GAO), the protestor contended that the government never provided it with a copy of the solicitation and it could not locate the solicitation on the FedBizOpps website, which was the GPE before SAM.gov. The protestor took the position that it diligently pursued the subject opportunity through the FedBizOpps website by signing up for automatic updates and performing regular searches for relevant key terms. However, despite its best efforts, the protestor was unable to find or view the solicitation and thus failed to respond in a timely manner. In applying the presumption, the GAO charged the contractor with constructive notice and rejected the protestor's argument that the government had denied it a fair opportunity to compete.

Timeliness and Scope of Requests for Reconsideration in GAO Protests

March 6, 2025 Sareesh Rawat, Esq.

Government Accountability Office (GAO) bid protest regulations provide government agencies and protestors 10 days to file their requests for reconsideration after the basis for reconsideration is known or should have been known. This typically means that in the absence of significant development or changes, the parties have 10 days from the issuance of the GAO’s protest decision to file their request for reconsideration. Requests to change or modify GAO’s recommended remedy are also considered requests for reconsideration and when filing such requests, the parties must adhere to the 10-day filing deadline. If the request for reconsideration is untimely, the GAO may not consider it, regardless of the party filing the request. This is because GAO regulations do not contain a provision granting the office discretion to consider untimely requests for reconsideration, even when a significant issue is involved or for good cause shown. Thus, unsuccessful protestors who wish to file requests for reconsideration with the GAO should ensure strict adherence to the 10-day filing deadline.

On December 12, 2024, the GAO sustained a post-award bid protest in B-422938; B-422938.2, finding that the government’s answer to a contractor question during the Q&A period amounted to a mandatory solicitation requirement that had to be met at the time of proposal submission, and which the awardee’s proposal had failed to satisfy. This protest was the subject of the year’s first TILLIT LAW Featured Insight article published on January 2, 2025. In that post-award protest decision, the GAO concluded that the Air Force had erred in awarding an approximately $180 M task order for portable satellite terminals to a small business holder of the National Aeronautics and Space Administration (NASA) Solution for Enterprise-Wide Procurement (SEWP) indefinite delivery, indefinite quantity (IDIQ) contract. The protestor’s solution, which was technically acceptable and met solicitation requirements at the time of proposal submission, had a total evaluated price of approximately $300 M. The GAO recommended that the Air Force either reevaluate the proposals and issue the award to an offeror that proposed a terminal assembly that met the solicitation requirements or amend the solicitation to reflect the government’s actual needs.

Sufficiently Stating Legal and Factual Grounds for GAO Bid Protests

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