Task Orders Issued Under GSA FSS Contracts
FAR Part 8.4

GAO
U.S. Court of Federal Claims
Agency
Automatic Stay? Yes
For pre-award protests, the agency must suspend award of the contract once it receives notice from GAO that a protest has been filed. FAR 33.104(b).

For post-award protests, the agency must suspend performance so long as it receives notice of the protest from GAO within 10 days after contract award. FAR 33.104(c)(1). (Note: Debriefings are not “required” for procurements under FAR Part 8.4. FAR 8.405-2(d).)

 
GAO is required to notify the agency within 1 day of receipt of the protest. 4 C.F.R. § 21.3(a). Thus, if filing close to the statutory stay deadline, the protester should bring this to GAO’s attention and ask GAO to provide expedited notice to the agency.
Automatic Stay? No
In order to obtain a stay, the protester must file a motion for preliminary injunction, demonstrating that: (1) it is likely to succeed on the merits of its protest; (2) it will suffer irreparable harm absent an injunction; (3) granting the injunction will serve the public interest; and (4) the harm the protester will suffer absent the injunction outweighs the harm to the Government and third parties caused by the injunction.
Automatic Stay? Yes
For pre-award protests, the agency must suspend award of the contract until it has resolved the protest. FAR 33.103(f)(1).

For post-award protests, the agency must suspend performance so long as it receives the protest within 10 days after contract award. FAR 33.104(f)(3). (Note: Debriefings are not “required” under FAR Part 8.4. FAR 8.405-2(d).)

 
Pursuing an agency protest does not extend the time for obtaining a stay at GAO. FAR 33.103(f)(4).
Jurisdictional Timelines:
A pre-award protest based on improprieties in the RFP that are apparent prior to receipt of proposals must be filed prior to the time set for receipt of initial proposals. Improprieties subsequently incorporated into the solicitation must be protested by the next closing time for receipt of proposals following the incorporation. 4 C.F.R. § 21.2(a)(1).
A post-award protest must be filed not later than 10 days after award.
For all other protests not covered above, the protester must file its protest not later than 10 days after the basis of protest is known or should have been known, whichever is earlier. 4 C.F.R. § 21.2(a)(2).
Jurisdictional Timelines:
There are no strict timelines for filing a protest, and the GAO timeliness rules do not apply in the COFC. However, a protester waives a challenge to a patent error in the RFP if it has not raised it with the government prior to the time set for receipt of proposals (the “patent ambiguity” rule). Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1315 (Fed. Cir. 2007).
A lengthy delay in filing may affect the protester’s ability to obtain a preliminary injunction and may also result in the court barring the protest under the doctrine of laches. Reilly v. United States, 104 Fed. Cl. 68, 78 (2012).
Jurisdictional Timelines:
A pre-award protest based on alleged apparent improprieties in the RFP must be filed before bid opening or the closing date for receipt of proposals. FAR 33.103(e).
All other protests must be filed no later than 10 days after the basis of protest is known or should have been known, whichever is earlier. FAR 33.103(e).
Subject Matter Jurisdiction Limits:
FAR 16.505(a)(10)’s restrictions on bid protest jurisdiction do not apply to orders placed under GSA FSS contracts. Severn Cos., Inc., B-275717, et seq., April 28, 1997, 97-1 CPD ¶ 181 at 2 n.1. Thus, a protester is not limited to task orders in excess of of $25 million or $10 million and is not limited to alleging the order increases the scope, period, or maximum value of the contract.
The protestor must still be an “interested party.”
Subject Matter Jurisdiction Limits:
FAR 16.505(a)(10)’s restrictions on bid protest jurisdiction do not apply to orders placed under GSA FSS contracts. Idea Int’l, Inc.v. U.S., 74 Fed.Cl.129 (2006).
So long as the protester is an interested party, it may protest a solicitation, award, or any legal violation in connection with a procurement or proposed procurement pursuant to the Tucker Act (28 U.S.C. § 1491(b)).
Subject Matter Jurisdiction Limits:
FAR 16.505 does not apply to orders placed under GSA FSS contracts.
So long as the protester is an interested party, it may file an agency-level protest. FAR 33.103(b), (d)(2)(vii).
Process for Appealing Unsuccessful Decision:
A Request for Reconsideration may be filed at GAO not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier. 4 C.F.R. § 21.14.
A protester may “appeal” a GAO decision in the Court of Federal Claims by filing suit alleging that the agency’s procurement was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of the APA, 5 U.S.C. § 706(2)(A). There is no strict timeline for filing such an “appeal.”
Process for Appealing Unsuccessful Decision:
A protester may appeal a COFC decision to the U.S. Court of Appeals for the Federal Circuit by filing a notice of appeal with the clerk of the Federal Circuit within 60 days after the date of entry of judgment. 28 U.S.C. §§ 1295(a)(3); 2107(b); 2522; COFC Rule 58.1; FRAP Rule 3; CAFC Rules 3 and 4 (Practice Notes).
The Federal Circuit reviews the COFC’s determination on the legal issues without deference, applying the same “arbitrary and capricious” standard under the APA as that applied by the COFC, i.e., whether the agency’s procurement decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law.” 5 U.S.C. § 706(2)(A).
Process for Appealing Unsuccessful Decision:
A protester may seek independent agency review of the contracting officer’s decision on the protest at a level above the contracting officer in accordance with agency procedures. Independent agency review does not extend GAO’s timeliness requirements. FAR 33.103(d)(4).
A subsequent protest may be filed at GAO so long as it is filed within 10 days of actual or constructive knowledge of initial adverse agency action. FAR 33.103(d)(4) (citing 4 C.F.R. § 21.2(a)(3)).
A subsequent protest may be filed at the Court of Federal Claims by alleging that the agency’s procurement was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). There is no strict timeline for filing such an “appeal.”
 
Most agencies supplement FAR 33.103 with their own procedural regulations.

The information contained in this chart is not intended to serve as legal advice related to any individual situation. This material is made available for informational purposes only and is current as of April 2017.  

PROCUREMENT TYPE
Chart 1 (Contracts)
Chart 2 (IDIQ Task Orders)
Chart 3 (GSA FSS Task Orders)
 
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