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Salvaging Your Government Proposal: A Short Primer on Government Contract Bid ProtestsWritten by: Jon W Van Horne Reputation Level 8
Posted over 3 years ago. 1 helpful vote, 0 comments
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Ready, Set, Go: The Important of DeadlinesThe 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 ProtestsIn 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 ForumsProtests 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.” 6
What Do You Protest at the Court of Federal ClaimsThe COFC has jurisdiction over an “action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 USC 1491(b)(1). The standard the Court applies is whether agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 USC 706. To be successful, the protester must show it was prejudiced by the agency action. At the COFC, an “interested party” is a plaintiff that stands “in some connection to the procurement” and that has an economic interest in the procurement. 7
Timeliness at GAOTime frames for filing all Bid Protests are extremely short. If you remember nothing else about bid protests, remember this. There is no way this can be emphasized too much. As noted above, there are essentially two types of protests, those that challenge some aspect of the solicitation document itself and all other protests. Protests about problems with the solicitation document itself must be filed before time for government’s receipt of offers, regardless of the forum (agency, GAO or COFC). If a company sees a problem with a solicitation, it cannot wait to see how the competition turns out before filing a protest. A problem with a protest filed after the government’s receipt of offers can arise when the agency sees the issue, not as a problem with the proposed award, but with the solicitation itself. An agency will use this argument to defend against the protest if it can. 8
Timeliness at the Court of Federal ClaimsThe COFC does not follow the GAO timeliness rules. However, wait too long to file a protest at the COFC and the government may try to use the defense of “laches,” which basically means that the government has been prejudiced by the protester’s delay. The Court of Federal Claims can issue a temporary restraining order or preliminary injunction requiring the government agency to suspend the procurement pending the Court’s decision. However, a delay in filing at the COFC may make it difficult or impossible to get the Court to agree to such an order. 9
Protective OrdersBoth GAO and the Court will protect proprietary and acquisition sensitive information with appropriate protective orders. Protests can be handled by non-lawyer contractor employees at GAO, but only outside counsel can see documents under a protective order (usually information about other offerors) issued either by GAO or the Court. 10
ProcessGAO has rather informal procedures. A protest can be initiated with a letter (however, it is advisable to check the GAO rules to make sure all the information that is required is included in the letter). The agency is required to provide a report with documents in response. The protester gets to comment on the agency report. GAO can hold hearings and take testimony, but that is entirely up to GAO. The Court follows rules similar to those that apply in a federal district court. While the agency is required to submit an administrative record, the record can be supplemented by the protester with the court’s permission. While there is no trial as such and no jury in the COFC, there can be a hearing before the Judge for oral argument. Additional ResourcesYou can download the entire primer at JD Supra (see link below). The primer has additional links to resource documents. Related Questions2 Attorney answers: 
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