Selling to the federal government is unique in many ways. One significant difference with selling in the commercial market is the availability of pre-award legal remedies for disappointed bidders. This guide is a short (and partial) introduction to the federal bid protest process.
1
Ready, Set, Go: the Important of Deadlines
The one most important issue to keep in mind with bid protests is that the deadlines for pursuing a protest are very tight. (Actually, the same is true for the entire federal government proposal process.) We are talking days, not weeks here. And the deadlines can be in terms of calendar days, not business days. There is no way to emphasize this point too much. To protest a company’s right to pursue a bid protest, actions must be taken very quickly even for very agile businesses.
2
First Step: Agency Debriefings and Agency Protests
In most competitions, losing offerors have the right to a debriefing by the agency. (See FAR 15.505 and 15.506) Offerors should always ask for a debriefing even if there is no obvious problem with the award, if only to be educated about the agency procurement process.
Debriefing must be requested within 3 days of notice of being excluded from the competition (FAR 15.505) or notice of award (FAR 15.506). Miss the deadline and you have no right to a debriefing.
Disappointed bidders can file an agency level protest with the Contract Officer. FAR 33.103. In theory at least, the protester is entitled to “an independent review of their protest at a level above the contracting officer.”
3
Where to Go: the Two Bid Protest Forums
Protests may be filed with the Government Accountability Office (“GAO”) or the United States Court of Federal Claims (“COFC”). These are the only two forums available outside of the purchasing agency for bid protests.
GAO is a government agency that is actually a part of the Legislative Branch, but has by statute authority to decide protests. The COFC is a federal court of limited jurisdiction located in Washington DC (across the street from the White House), the primary purpose of which is to decide monetary claims against the federal government.
4
What Do You Protest?
Most protests challenge the rejection of a company’s offer or and the award of a contract to another company. A common basis for a protest is the failure of the agency to follow the evaluation scheme set out in the solicitation. Protesters can also challenge disparate treatment of offerors (although frankly this is a harder case to make). Protesters can also challenge a violation of statutory or regulatory requirements, but the protester will also have to prove that it has been prejudiced by the violation.
Protests also can challenge defects in the solicitation document itself, such as restrictive specifications that make it difficult for all but one company to win, omission of a required provision, and ambiguous or indefinite evaluation factors.
5
What Do You Protest at GAO?
At GAO, a company can protest a solicitation; the cancellation of a solicitation; the award or proposed award of a contract; and a termination of a contract, if the termination was based on improprieties in the award of the contract. In order to file a protest at GAO, a company must be an “interested party,” which is defined as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.”
Comments - add comment