We have noted in past posts that, in some cases, it may make sense to protest a solicitation evaluation or award decision at GAO simply to get a stay on the award. This is because, if you meet certain deadlines, a stay of award and performance is automatically placed on the procurement for the duration of the protest. Now, there are circumstances in which an agency can override this stay, but the burden is on the agency to show such an override is necessary. The Federal Circuit confirmed this is the case in Life Science Logistics, LLC v. United States, 172 F.4th 1357 (Fed. Cir. 2026), in which an agency tried to get the higher burden for a preliminary injunction placed on GAO protesters. This decision suggests that agencies may think more carefully about attempting overrides of stays going forward.
The matter in question stems from an award of a contract by GSA to a company called IQS in 2022. Life Sciences Logistics, LLC (LSL) filed a protest of this award with GAO shortly thereafter. After three separate iterations of protests and resolicitations, GSA awarded the contract for a third time to IQS on October 30, 2023, which LSL again protested with GAO.
The Competition in Contracting Act (CICA) provides that, if a GAO protest is filed within 10 days of contract award or 5 days of a requested and required debriefing (whichever is later), a stay of performance on the awarded contract shall be in place during the GAO protest. 31 U.S.C. 3553. As such, LSL’s protest triggered such a stay. But the same statute provides that agencies may disregard this stay in certain circumstances. One such circumstance is when “urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest.” 31 U.S.C. 3553(d)(3)(C)(i)(II). GSA attempted to override the stay from LSL’s protest for this very reason.
After GSA did this, LSL sued at COFC, arguing that the override was unlawful as GSA’s reasoning was arbitrary. The COFC, in turn, agreed the override was arbitrary. The decision does not explain why it was arbitrary, we must assume the government’s argument was pretty weak if it was decided without even describing why the argument was invalid. GSA attempted to argue that COFC’s own four equitable factor standard (likelihood of success on the merits, irreparable harm, balance of equities, and public interest) applied to the GAO stay determination. COFC disagreed, noting that CICA provided for an automatic stay procedure. Inserting new injunctive relief standards into this procedure would go beyond the statute.
GSA appealed this matter to the Federal Circuit. After first addressing a question of mootness, it turned to the actual issue of the stay. The court agreed with COFC: “A bid protestor seeking a declaration that an agency override of a CICA stay is arbitrary and capricious need only show that, in fact, the agency’s override was arbitrary and capricious. The protestor is not also required to demonstrate a likelihood of success on the merits, irreparable harm, a balance of the equities in its favor, and a benefit to the public.”
Turning to the language from CICA, the Federal Circuit observed that the stay requirement was automatic if the protester met the applicable deadlines. That is the default rule. The stay may only be overridden in certain circumstances. Nothing in CICA permits using the four-factor rule. Congress specifically chose to impose no burden on the protester for the stay to apply. The stay is automatic. Thus, it “cannot have been Congress’ intent to require a protestor whose automatic stay has been overridden by arbitrary and capricious government action to have to prove to a court – in addition to the unlawfulness of the override – that the protestor faces irreparable harm, the equities are in its favor, and the public would benefit from granting the relief requested.”
Indeed, the Federal Circuit observed that, were it to find this four-factor rule applied, it would greatly incentivize the government to override far more CICA stays. The government could essentially override the stay for no reason and shift the burden of proof to the protester. That would contradict the entire idea of making the stay automatic. The idea is that the burden is supposed to be on the government that the stay must be overridden for urgent reasons.
The Federal Circuit’s decision in this matter is one we whole-heartedly agree with, both in terms of the logical nature of its reasoning and its impact on the protest system. Frankly, it is already not terribly difficult for the government to override the GAO stay where it needs to. Shifting the burden to the protester is simply unnecessary and would only serve to dissuade even more protests.
One consideration that the court could have noted more is that the GAO stay is very limited in its duration. GAO is supposed to issue a decision within 100 days of the filing of a protest and, in our experience, GAO very much abides by this rule. As such, the stay generally lasts no longer than 100 days, limiting the burden it places on the government. In contrast, a stay in a COFC bid protest will last as long as the case is there, and that can take years.
This is good news for protesters and will make agencies think more carefully about attempting overrides of stays going forward.
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