Did You Find Improprieties in the Contract Bidding or Award Process? Consider (Quickly) a Protest

The attorney-authors receive inquiries from contractors for the United States Government (USG) who complain a contract was awarded to a competitor unfairly.  Some contractors think there is nothing they can do about an unfair award by the USG.  That is wrong.  If you lost a contract award and believe the bidding process or award was unfair or may have violated the law, you can protest.

This article describes what a protest involves and the short deadlines involved with a protest– often, a 10-day deadline.  If you are potentially interested in a protest, read on, and make a prompt decision whether you will take action.

What Is a Protest?

A protest is a process a contractor can initiate with the USG to claim there were improprieties in the government procurement process, to try to fix the harm, and try to obtain a desired result, such as a re-bidding of the contract, etc.

Where Can You Protest?

There are three forums to file a protest: with the agency that handled the procurement, with the Government Accountability Office (GAO), or with the Court of Federal Claims. There are pros and cons to each forum. In this article, we will focus on the GAO. The GAO is a popular forum for filing a bid protest because it comes with a key advantage: the ability to request the government to stop implementation of the award or the contract pending a decision on the case.  This is known as a “stay.”

For example, one of our client contractors obtained such a “stay” in connection with a protest it filed with the GAO concerning a contract that was improperly awarded to our client’s competitor by the government. Specifically, we filed a protest alleging the US government failed to conduct a proper evaluation of the competitor’s proposal in conjunction with the solicitation’s technical requirements. Our client ultimately won the protest.

What Can You Protest at the GAO?

In general, you can protest improprieties related to the procurement and bidding process and the actual contract award. For instance, you can challenge:

  1. The government’s acceptance of a bid or proposal (e.g. if you think the government should not have accepted your competitor’s bid due to a possible impropriety).
  2. The government’s rejection of a bid or proposal (e.g. if the government rejected your bid or proposal, and you think the rejection was improper).
  3. The award or proposed award of a contract (e.g. if the government awarded a contract to your competitor and you question whether improprieties exist).
  4. Defective solicitations (e.g. if you are reviewing the solicitation and think the specifications are too restrictive or a required provision is omitted, or the bid evaluation factors are ambiguous or indefinite).

The above are just some of the examples of what can be protested. Many other grounds exist.  Consider consulting promptly with a competent attorney to determine if you have a claim.

What Could You Win or Achieve?

If the GAO upholds your protest, depending on what is appropriate for the situation, it may recommend the contracting agency do one or more of the following:

(1) Refrain from exercising options under the contract;

(2) Terminate the contract;

(3) Recompete the contract;

(4) Issue a new solicitation;

(5) Award a contract consistent with statute and regulation; or

(6) Such other recommendation(s) as GAO determines necessary to promote compliance.

WARNING: Act Quickly! Protest Must Be Filed Within 10 Days or Even Before Bidding.

If you have concerns about the USG’s bid process, one of the most critical points to remember is you must act quickly. Protests with the GAO come with strict filing deadlines. If you miss the deadline, you miss your right to file.

Specifically, if the protest involves the solicitation itself, you must file the protest before proposals are due or bids are opened. For other protests, they must be filed within 10 days of the date of the problem.

The deadline clock starts ticking when you know of the problem or when you should have known of the problem. The term “should have known” means when you had the opportunity to know, even if you did not actually take advantage of that opportunity to know. For example, you have bid on a contract and the government sends out an email to all bidders saying your competitor won. You, however, only get around to reviewing that email 20 days later, and want to protest the award. You cannot. The clock started ticking on the day you received the email and could have read it, even if you did not.

In contrast, you might learn many months after contract award about a problem, but can still file a protest. For example, say you lost out on a bid to a competitor, and several months later, a disgruntled former employee of your competitor tells you the competitor was allowed to bid after the deadline, while everyone else was held to the deadline.  This is grounds for protest. Even if you obtained such information several months after contract award, you only had the opportunity to know of such information when it was first communicated to you.  In such circumstances, you may still be eligible to file a protest, provided you do so within 10 days of learning such information.

There are limited exceptions to this strict deadline, but that should not be relied upon to save a late filing. They are rarely granted.

How Much Time Will It Take To Get a Decision?

Compared to many other government forums, the GAO moves quickly. The regulations set a 100-day timetable for issuing decisions. In our experience, the GAO strives to act within this timeframe.

How Much Does it Cost?

The GAO does not charge for a protest. If you hire an attorney, you will have to pay those fees. The good news is, if you win your protest, you may be eligible to seek reimbursement of some or all of attorney fees from the USG under the Equal Access to Justice Act (EAJA).

As an example, Attorney Vandaveer obtained such a fee award on behalf of a client following a successful protest of a government contract award. The GAO’s decision is available here.

GAO Resources

For more information about the GAO rules and protest process, see the GAO site here: http://www.gao.gov/legal/bids/bidprotest.html

If you question the bidding process or award of a contract to a competitor and want to learn more about your rights and options, please contact the blog-author attorney Vonda K. Vandaveer at vonda@vkvlaw.com or +1-202-340-1215. There is no fee for initial communication about your matter.

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