Welcome To The Bid Protest Weekly
General Counsel, P.C.’s Government Contracts Practice Group is pleased to provide you The Bid Protest Weekly. Begun in December 2008, the Bid Protest Weekly provides summaries and analysis of GAO Bid Protest Decisions. The Bid Protest Weekly is a resource center for government contractors.
First, through our Bid Protest Basics Section, Government Contractors can learn the mechanics of filing a bid protest, including deadlines and procedures based on the choice of venue. This section also contains factors to consider in determining whether filing a protest is appropriate and real world tips on how to file a protest without damaging the relationship with your government client. Through articles, power point presentations, and video, this is a complete resource to help government contractors understand the bid protest process.
Second, through our Bid Protest Weekly Blog, Government Contractors have access to six (6) years of bid protest summaries and analysis that provide valuable guidance. By reviewing past decisions, government contractors can better predict outcomes specific to their situations – and, thus, gain insight on whether to file a bid protest. The Bid Protest Weekly can be searched in three (3) ways: (1) By simply reviewing our Archives; (2) By reviewing relevant topics by category; and (3) By using key words. Numerous Government Contractors have told us what a valuable tool this search functionality provides to help them in their decision making process.
The Bid Protest Weekly is researched and written by the attorneys of General Counsel, P.C. It is edited by Rocky Galloway, who leads the firm’s Government Contracts Practice. For more information, or assistance with a bid protest, please contact Mr. Galloway at firstname.lastname@example.org or 703-556-0411.
Bid Protest Basics
What is a bid protest?
A bid protest is a challenge to the award or proposed award of a contract for procurement of goods and services or a challenge to the terms of a solicitation for such a contract.
Bid Protest Primer
How to File Bid Protest without Antagonizing Your Gov’t Client
Bid protests provide a remedy under federal government contracting procedures for aggrieved contractors to challenge the award or prospective award of a contract for goods and services, or to challenge the terms of a solicitation. When deciding on whether to file a bid protest, contractors often have to consider two factors…Read More
When, Where and Can you Win? Watch the Power Point
What is a GAO Bid Protest?
A bid protest is a challenge in which an interested party files a complaint to the U.S. Government Accountability Office (“GAO”) about the award of a government contract and requests a review of the contracting process for fairness.
Who May Protest?
To be eligible to submit a bid protest, the party asserting the claim must be an interested party. This means that the bidder is an actual or prospective bidder whose direct economic interest is affected by the government’s award of a contract or by the government’s failure to award a contract.
Who May Intervene?
The rules of bid protest allow companies who had a substantial prospect of receiving an award to intervene as an interested party. There is no time limit on intervening so the notice to intervene can be filed any time. The intervener is then allowed to take part in any hearing that is held for the original parties and may submit written statements in furtherance of its position.
What are the Possible Remedies?
1) Refrain from Exercising Options Under the Contract
2) Terminate the Contract
3) Re-compete the Contract
4) Issue a New Solicitation
5) Award a Contract Consistent with Statute and Regulation
6) Other Recommendations as GAO Determines Necessary to Promote Compliance
Is there an Appeals Process?
If a bid protester is not satisfied with the GAO’s decision on their protest, the bidder may file a request for reconsideration. This applies for both the bid protester and the intervener. This request must include a detailed statement of the facts and legal basis upon which reversal or modification is warranted. It must detail any legal errors or relevant facts that were left out. The request must be filed within ten days of the bid protest decision and must be served to the parties involved. Alternatively, the protester may file an appeal of the GAO’s decision with the Court of Federal Claims.
What Issues are not for Consideration?
The GAO regulations are explicit about issues that are not for consideration and warrant immediate dismissal of the protest. Thus, it is essential for potential bid protesters to prudently construct their protests to avoid issues that are not for consideration. Such non-consideration issues include the following:
1) Contract Administration: The administration of a current contract between the agency and the contractor is within the discretion of the agency. Thus, issues or disputes that may arise between the two must be resolved in conformance with the disputes clause of such contract.
2) Small Business Administration: GAO defers to the Small Business Administration (SBA) for issues involving small business size standards, North American Industry Classification System (NAICS) codes, small business certificate of competency and procurements.
3) Affirmative Determinations of Contracting Officers: The potential and likelihood of the bidder’s capability to competently perform a government contract is largely determined by the contracting officer. Thus, GAO gives much deference to the contracting officer’s selection for award. There is an exemption that will allow consideration by GAO if there is evidence raising serious concerns that the contracting officer failed to act reasonably.
4) Procurement Integrity: Issues that arise from sections of the Office of Federal Procurement Policy Act, where the bidder failed to report the evidence of the offense to the federal agency responsible for such procurement, will likely be dismissed.
5) Insufficient Protests: Bid protests that are not filed timely or lacks detailed statements of legal and factual basis in conformance with GAO regulations will be dismissed.
6) Other Non-consideration Issues: Some issues dealing with subcontracts, suspension and debarments of contractors, government employees, and others are not reviewed by the GAO.
The list above is not a comprehensive list of all the issues that are dismissible by GAO. Each case is unique based on its facts and the circumstances surrounding the contracting party. It is therefore advisable to retain experienced counsel to help identify protest issues that will withstand the scrutiny of GAO and present significant probability for judgment in favor of the protester.