automatic stay

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The automatic stay of award is one of the key elements of a bid protest under the Competition in Contracting Act. The CICA stay is only available when a protest is filed no later than ten days after contract award or no later than five days after a debriefing. In the 2018 NDAA (Section 818), Congress introduced the enhanced debriefing process for DoD procurements. It allows disappointed offerors to submit follow-up questions within two business days after a debriefing. It also extends the protest deadline until those questions are answered. But what if the contractor does not have any additional questions? Does the two-day period to submit questions extend the protest deadline for purposes of the CICA stay?

The Federal Circuit answered this question in NIKA Technologies, Inc. v. United States, Case No. 2020-1924 (Feb. 4, 2021). If a contractor does not submit follow-up questions after a debriefing, it does not get the benefit of the two-day question period for purposes of the CICA stay.

Contracts with Virginia agencies, counties, municipal governments, and school boards are governed by the Virginia Public Procurement Act. The Act requires the use of competitive procedures in the solicitation and award of public contracts. It also establishes a procedure for the submission and resolution of bid protests. See Va. Code Ann. § 2.2-4360(A).

How and when to protest a contract award decision

An actual or prospective bidder seeking to challenge the award of a Virginia government contract must submit a protest to the procuring agency or to an official designated by the agency. The protest must be submitted in writing. It must include the basis for the protest and the relief sought. A bid protest must be submitted no later than ten days after the award or the announcement of the decision to award, whichever occurs first. This deadline is extended if the protest depends on obtaining access to documents. In those situations, the protest must be submitted within ten days after the records are made available. The VPPA does not specifically allow for the submission of a pre-award protest that challenges the terms and conditions of a solicitation.

If a protest is timely filed, the award and performance of the contract is automatically stayed unless the agency determines in writing that “proceeding without delay is necessary to protect the public interest or unless that bid or offer would expire.”  Va. Code Ann. § 2.2-4362.

South Carolina law provides a statutory procedure for the submission and resolution of bid protests. Under section 11-35-4210 of South Carolina’s Consolidated Procurement Code and section 19-445 of South Carolina’s procurement regulations, bid protests relating to procurements greater than $50,000 may be initiated with a letter directed to the appropriate chief procurement officer (“CPO”).

Filing the protest

A protest must be in writing and must set forth the grounds of protest and the relief requested with enough particularity to give notice of the issues to be decided. S.C. Code Ann. § 11-35-4210(2).

As with federal procurements and those of many other states, the deadline for the submission of a bid protest is short. If challenging the terms of a solicitation, a prospective bidder must file the protest within 15 days of the issue date of the invitation for bids or request for proposals. If an amendment to the solicitation is at issue, the protest must be filed within 15 days of the amendment.

The deadline for protesting the award or intended award of a contract is even shorter. Unsuccessful bidders must file such protests within 10 days of the date of award or notification of intent to award, whichever is earlier. The protest can be amended after it is filed, but such amendments must be filed within 15 days after the date of award. S.C. Code Ann. § 11-35-4210(1)(b).