Payne Hackenbracht & Sullivan

GAO Guidelines for Protest Hearings

Hearings will be held where GAO believes that oral argument and/or oral testimony is necessary to clarify the legal and factual issues of a protest. These hearing guidelines are intended to permit varying degrees of procedural formality ranging from an opportunity for oral argument to direct and cross-examination of witnesses.

1. Request for Hearing

(a) Under GAO's Bid Protest Regulations, 56 Fed. Reg. 3759 (1991) (to be codified at 4 C.F.R. Part 21), a request for a hearing may be made by the protester, the contracting agency, or an interested party as defined in section 21.0(b) of the regulations; GAO may also decide on its own accord that a hearing is warranted.

(b) A request for a hearing should be made in writing as soon as it is evident that specific issues cannot be fairly resolved on the written record. The request should set forth the specific reasons why a hearing is needed and should specify the issues to be covered at the hearing. If witness testimony is requested, the request should also identify any specific factual disputes essential to the resolution of the protest which the requesting party believes cannot be fairly resolved without oral testimony, and should identify the witnesses which the requesting party believes should testify.

2. Notice and Scheduling

(a) Normally, the decision to grant a hearing request will not be made until after GAO receives and reviews the agency report on the protest.

(b) GAO will advise the parties in writing when it grants a request for a hearing, and will usually also notify the parties by telephone. GAO will confer with the parties in scheduling a prehearing conference and the hearing, which will usually be held within 1 week after the prehearing conference.

3. Hearing Official

The cognizant GAO Assistant General Counsel shall designate as the presiding hearing official a GAO attorney familiar with the protest record, with the requisite knowledge and skills to conduct the hearing.

4. Prehearing Conferences

(a) Prior to the hearing, the GAO hearing official may conduct a prehearing conference to discuss and resolve procedural matters. Document disclosure issues should be resolved prior to the prehearing conference. GAO will usually require written submissions from the parties prior to or at the prehearing conference concerning such matters as the issues to be addressed at the hearing, the identity of proposed witnesses and areas of proposed testimony for each, exhibits and objections.

Among the matters which may be discussed and which the parties should be prepared to address at the prehearing conference are the following:

1) Issues

_issues to be resolved,

_factual disputes to be resolved,

_whether issues/disputes identified warrant a hearing,

_if a hearing is warranted, whether the hearing should be testimonial or non-testimonial,

2) Witnesses

_proposed witnesses and/or representatives,

_anticipated testimony and/or comments,

_qualifications and area of expertise of proposed expert witnesses,

_facts or data underlying testimony of expert witnesses,

_use of technical representatives,

_whether summary of testimony of technical representative should be submitted prior to hearing,

_whether GAO technical assistants will be present,

_individuals designated to conduct direct/cross examination,

_scope of direct/cross examination,

_whether witnesses will be sequestered,

3) Procedures

_opening and closing statements,

_order of presentation/testimony

_time limits on testimony/statements,

_demonstrations,

_use of affidavits,

_use of stipulations,

_resolution of document disputes (although normally all document disputes should be resolved before the prehearing conference),

_documents to be used in direct/cross examination,

_objections to authenticity of documents,

_protective order procedures;

_kinds of objections that will be entertained at the hearing,

_date, time, place for hearing, and

_format for recording hearing.

Because a principal purpose of the prehearing conference is to eliminate surprises at the hearing, a party may, absent good cause shown, be held to have waived any objection or may be denied any request that could have been but was not made at the prehearing conference.

(b) Prehearing conferences usually will not be recorded.

(c) In most cases, only one prehearing conference will be held on a protest.

(d) Prehearing conferences may be held by telephone where this is the most practicable approach.

5. Ex Parte Communications

The hearing official shall not entertain and no person directly or indirectly involved in a protest shall submit to the hearing official, off the record, any evidence, explanation, analysis or advice, written or oral, regarding any substantive matter at issue in the hearing or the bid protest.

6. Conduct of Hearings

(a) Section 21.7(d) of GAO's Bid Protest Regulations explains who may be permitted to attend and participate in a hearing. GAO may require the attendance of specific representatives and witnesses; GAO may also limit attendance at hearings because of space constraints, the need to protect proprietary or competition sensitive information, or in order to otherwise maximize the value of a hearing for the decision-making process. In some cases in which oral testimony is deemed to be unnecessary, hearings may be held in order to give the parties the opportunity to orally present their cases and hear the positions of, and direct questions to, representatives of other parties.

(b) The GAO hearing official may invite other GAO officials, including technical assistants, such as GAO scientists or engineers, to hearings. The type and level of participation of such assistant will be decided by the hearing official.

(c) Requests for continuances normally will not be granted. The absence of a party or witness at the time and place set for a hearing will not be the occasion for delay, absent good cause. If a party or a witness fails or refuses to attend the hearing, or refuses to answer a relevant question, the hearing official may draw an appropriate unfavorable inference.

(d) A record may be made of all hearings in the form of a written transcript, videotape, tape recording or other medium. The decision whether to reduce a videotape record, for example, to a written transcript in a particular case will be made by the hearing official and will depend upon the nature of the hearing and whether the delay and cost associated with making a transcript outweighs the possible convenience of that format. The hearing official has the discretion to go off the record during the hearing.

(e) The hearing official will schedule the time for submission of post-hearing comments at the conclusion of the hearing.

7. Additional Guidance for Conduct of Testimonial Hearings

(a) Whether witnesses will be sequestered during the hearing and requested not to discuss their testimony until after the hearing is concluded will be established at the prehearing conference.

(b) The order of testimony and questioning of witnesses will be as determined by the hearing official at the prehearing conference.

(c) The GAO hearing official will establish the scope, length, and conduct of direct and cross examinations, and may direct questions to witnesses or representatives of any party at the hearing.

(d) Leading questions of a party's own witnesses generally will not be permitted unless, in the view of the hearing official, leading questions are necessary to expedite the proceedings and will cause no prejudice to any party.

(e) Cross-examination will ordinarily be limited to matters within the scope of the direct-examination. Abusive cross-examination will not be permitted.

8. Admissibility of Evidence

(a) Any relevant evidence, including hearsay evidence, may be received unless the hearing official finds it to be unreliable, untrustworthy, or otherwise inadmissible. The hearing official may also exclude otherwise evidence to avoid unfair prejudice, confusion of the issues, undue delay, waste of time or needless cumulation of evidence.

(b) As a general matter, and subject to other provisions of these guidelines, the hearing official will use the Federal Rules of Evidence as a guide in making evidentiary rulings. The hearing official will make such rulings as she or he deems appropriate to further the purpose of resolving dispute issues in a manner which provides fundamental fairness to all parties.

(c) Parties normally will not be required to establish in the hearing record a foundation for exhibits or questions asked of witnesses.

(d) GAO will assume the authenticity of all proposed exhibits submitted in advance of a hearing unless the record otherwise indicates that the exhibit is not authentic or a valid objection is raised at the prehearing conference. A party may be permitted to challenge the authenticity of previously submitted documents for the first time at the hearing only upon a showing of good cause for failure to have raised the question earlier.

(e) If a party believes that probative testimony or documents were wrongly excluded from the record by the hearing official, that evidence must be appended to the party's post-hearing comments. Excluded testimony should be submitted in affidavit form.

9. Hearing Comments

While separate comments on an agency report will usually not be required when a hearing is held, GAO may require the filing of such separate comments if it is necessary to determine whether a hearing is required or to focus the issues for a hearing. If separate comments on the report are requested and filed before the hearing, GAO may limit the post-hearing comments to matters addressed in the hearing.

10. Determination of Facts

(a) The record of a hearing, whether in the form of a transcript, videotape, tape recording or other medium, is part of the protest record and factual findings will be based on the entire protest record. GAO will make findings of fact based on the preponderance of the evidence presented at the hearing and all documents submitted by the parties that were not specifically excluded from the protest record. Where appropriate, relevant findings of fact will be included in the bid protest decision.

(b) Although parties may stipulate or agree as to the relevant facts in a particular protest, GAO is not bound by such stipulations or agreements and may make its own determination based on the protest record as a whole using any stipulated facts as guidance.