One of the primary benefits of filing a protest with the Government Accountability Office (GAO) is that it automatically puts the awarded contracts on hold, stopping the agency from proceeding with performance. To reap the benefits of the automatic stay, however, the law requires protesters—in a post-award posture—to file their protests within ten days of contract award or five days after the close of a requested and required debriefing, as applicable. The time limits are tight, but the reward can be substantial, especially for incumbent contractors who often receive bridge contracts during the time it takes GAO to resolve the protest.
A recent decision from the Court of Federal Claims (Court), Starside Sec. & Investigation, Inc. v. United States, No. 19-1453C, 2025 WL 1783555 (Fed. Cl. June 18, 2025) (Starside), suggests that—in certain circumstances—those tight time limits may not be as set in stone as previously believed. Indeed, the Court in Starside declared that the statutory deadlines one must meet to obtain an automatic stay are subject to equitable tolling, may be extended under special circumstances, and that the agency was required to stay performance under an awarded contract despite the protester filing its protest more than ten days after contract award. Below, we explore the extraordinary circumstances that led to the Court’s ruling, as well as the potential lifeline it offers disappointed government contractors who plan on protesting.
CICA’s Automatic Stay Provisions
Disappointed offerors may obtain an automatic stay, either stopping a contract award in the pre-award stage or suspending performance of a contract in the post-award stage. In the pre-award stage, if a protest is filed with GAO prior to the proposal due date, the agency must hold off on awarding the contract until GAO resolves the protest. In the post-award stage, a protest filed with GAO within ten days of contract award or within five days of a requested and required debriefing (whichever applies) triggers an automatic stay of performance on the awarded contract. A protest may be filed with GAO outside of those deadlines and still be timely in certain circumstances, but typically, the agency is not required to stay the award or performance.
Obtaining a stay is significant as it allows the parties to maintain the status quo during the pendency of the protest proceedings, preserving a protester’s ability to obtain meaningful relief and saving the government time and effort if the protester is successful and GAO recommends the agency take corrective action. Agencies can override the stay and proceed with contract award or performance during a protest if they determine it is in the government’s best interests or there are otherwise urgent and compelling circumstances that justify continued action.
The Unique Circumstances in Starside
Starside Security & Investigation, Inc. (Starside) submitted its quote in July for a call order the General Services Administration (GSA) sought to award for guard and transportation services under a blanket purchase agreement (BPA). On August 15th, GSA awarded the order to ISS Action, Inc. (ISS), and GSA’s ordering system was supposed to automatically notify Starside via email of the award decision, but it did not. On the same day, GSA also attempted to upload the award information to the publicly available Federal Procurement Data System (FPDS) but was unable to do so—meaning the award information was not publicly available. On August 19th, Starside contacted the GSA contracting officer regarding the status of the order in question, and the contracting officer informed Starside that it would receive notice of any award. GSA eventually posted the award information on FPDS on September 1st, and Starside discovered the award information on September 3rd. Starside then contacted GSA again, which provided official notice to Starside and a brief explanation of award on September 5th.
Starside filed its bid protest with GAO on September 9th, requesting an automatic stay of performance. GSA did not stay performance, however, because the protest was filed more than ten days after contract award, i.e., August 15th.
Three days later, at the Court of Federal Claims, Starside challenged GSA’s decision not to stay performance of the contract, arguing that, among other things, GSA should have stayed contract performance under the theory of equitable tolling because it failed to timely notify Starside of award. The Court agreed that the filing deadline for obtaining an automatic stay may be tolled, i.e., extended, according to the theory of equitable tolling, which permits a filing deadline to be extended when a litigant has pursued its rights “diligently but some extraordinary circumstance prevents [it] from bringing a timely action.” The Court then concluded that tolling of the deadline was warranted, and performance of the contract must be automatically stayed in Starside’s case because
- Starside diligently pursued its rights with GSA and filed its GAO protest within ten days from notice of award, and
- extraordinary circumstances beyond Starside’s control prevented it from filing its protest within ten days from actual award (i.e., the GSA’s failure to notify it of the award despite it knowing award had already been made).
Put differently, despite that it filed its protest more than ten days after GSA actually awarded the order, Starside obtained an automatic stay of performance because it was not notified of the award, had no way to know GSA had made the award, was misled by GSA regarding the status of the award when it sought additional information, and filed its protest at GAO within ten days of becoming aware of the award status.
Takeaways
While Starside presented, according to the Court, a “novel” legal issue, agencies frequently fail to provide contractors with timely notices of award. As such, the case serves as a reminder of a few important points:
- Diligently Pursue Information About Contract Awards. Starside diligently pursued information about the status of the award, and its efforts were significant to the Court in finding that the automatic stay deadline was equitably tolled. Contractors competing for government procurements should do the same, including by regularly checking the SAM, FPDS, USASpending websites for award information, communicating with the contracting officer, and searching other agency-specific sites for contract award information. Once the award notice is public, contractors should assume the ten-day clock is running (absent a requirement for a debriefing).
- File Protests As Soon As Possible. Despite technically being beyond ten days of contract award, Starside’s situation implicated the doctrine of equitable tolling in large part because it diligently pursued its rights and filed its protest quickly—eight days after the award information became available on FPDS and five days after receiving official notice from GSA. Waiting any longer may have precluded it from obtaining the automatic stay, and disappointed offerors in similar circumstances should take heed to quickly file protests if they also seek to invoke this doctrine.
- Equitable Tolling is the Exception, Not the Rule. The circumstances in Starside are unique, and contractors should not rely on equitable tolling to obtain an automatic stay. Contractors should engage with counsel throughout the procurement process to ensure their protest rights are adequately protected and preserved. In most cases, it will save time and be more cost-effective to put together a brief protest within the ten-day period from actual award date (even if discovered part way through that ten-day period), if possible, than waiting and hoping the Court will invoke equitable tolling principles if the agency does not implement a stay.
