Things to Consider When Asserting Federal Bid Protests

Every year, government agencies sign tens of thousands of contracts. With so many bidders vying for a single contract, issues and disagreements are inevitable. A common occurrence in today’s government contracting market is protested bids. 

According to the Government Accounting Office (GAO), a bid protest is a legal challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to such a contract’s solicitation conditions.

A contractor who believes they may have been the victim of improprieties in the government contracting process has various options to rectify the matter. However, a complete understanding of bid protest methods and procedures is essential for success.

Here are a few things to keep in mind when asserting federal bid protests : 

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A. Difference between Bid Protests and Contract Dispute:

Despite being used interchangeably, bid protest and bid dispute are recognized as two separate terms by government contracting laws. 

1. Bid Protest: When you file a bid protest against a government contract, it means that you are claiming that the agency did not comply with its solicitation criteria or that the selection evaluation conclusion was arbitrary and unfair.   
   • Protests cannot be made against nonfederal agencies like state, local, or foreign governments, or exempt federal agencies like the Postal Service. 
   • Protests can only be filed by interested parties whose direct economic interest is affected by the awarding or non-awarding of a contract. 
   • The key laws that govern federal government procurement are the Armed Services Procurement (ASPA), Federal Property and Administrative Services, and Competition in Contracting Acts (CICA).  

2. Contract Dispute: The option to contest an issue or disagreement after you have won and given a contract gives you the right to “dispute.” 
   • Government contractors can dispute and file claims on serious discrepancies or controversies in the contract.
   • It is normally resolved through legal action during or after the performance of the contract.
   • All disputes concerning government contracts are handled according to the Contract Disputes Act of 1978. 

B. Pre-Award and Post-Award GAO Protests deadlines: 

Bid protests can be divided into two categories: pre-award and post-award protests. Contractors should keep in mind that the filing dates vary for each of these protests:

1. Pre-award protest challenges the terms of the government request prior to an agency accepting a bid or selecting a contractor. Therefore; 
   • For suspected solicitation anomalies, pre-award protests must be made prior to the opening of bids or initial offers. 
   • To protect the rights, contests of exclusion from the competitive range must be filed within ten days of debriefing. Protesting too late raises the likelihood of the claim being dismissed. 
   • They are lodged when a request is unduly restricted, exaggerates the agency’s needs, or the criteria and terms are unclear.

2. “Post-award” objection challenges the way the agency evaluates the bid after the award has been made and the contractor has been chosen. 
   • Post-award protests must be lodged within ten days of learning of the protest grounds. This is either ten days after receiving notification of award or ten days after receiving debriefing. 
   • Contract performance must be suspended immediately if the protest meets further timeliness requirements.
   • Unfair discussions/treatment, past performance evaluations or conflicts of interest inside the organisation are typically grounds for post-award protests.

C. Filing Bid Protests: 

Federal law provides a means for contractors to “protest” contract awards and solicitations if they do not conform with federal law to enhance transparency, fairness, and integrity in the procurement system. But only particular adjudicatory entities are allowed to hear protests. 

Therefore, it is always prudent to get legal counsel before filing a bid protest, which helps assess the concerns and determine the correct entity for the protest. Congress authorizes bid protests in three separate forums:

1. The procuring agency: agency-level protest filed with the agency conducting the procurement.
2. The Government Accountability Office (GAO)
3. The United States Court of Federal Claims (COFC).

There are some similarities and differences across the three discussion boards. For example:

•  They both use the same definition of “interested party” to determine who can and cannot make a legal complaint. 
• The legal procedures and remedies available in each forum are significantly different.
• Parties that disagree with a procuring agency’s or GAO’s decision on a bid protest may still pursue claims before the COFC, although the reverse path (filing a protest after an unfavourable COFC judgement) is normally not allowed. GAO, for example, usually dismisses protests that are pending before or have already been handled by the COFC.

D. Diligently Pursue Agency Debriefing

In negotiated procurements, debriefings are crucial. An agency ultimately notifies you of the award and invites you to a debriefing. Therefore, for the benefits of a required debriefing, a contractor must request it in writing within three days of getting the award notice.

To begin the protest clock, contractors must keep in mind to:

E. Proving Your Point in a Bid Protest:

However, winning a protest requires you to prove certain things in a bid protest. Most contractors make mistakes because each protest has its own unique issues, methods, and challenges like:

1. The procurement agency did not function according to the solicitation and/or applicable legislation, claiming the procurement process was tainted. This can be either in the process of evaluating bids, quotes, and proposals or in the decision-making process for choosing a supply provider.

2. There was an issue with the size/status of the contract awardee. For example, a contractor will lodge a size/status complaint if he believes that a contract awardee is ineligible to get a set-aside contract. These complaints are centred on whether or not the awardee actually is a small business.  

Conclusion

While government contracting has several potentials for businesses, it also presents a unique set of challenges that can result in a highly competitive market. As a result, a complete understanding of bid protest strategies and market analysis gives you an advantage over your rivals. 

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