Bid Protest Primer

  What is a Bid Protest?  A bid protest is a right created by statute that allows government contractors to challenge an agency’s decision regarding the ground rules for a procurement and the eventual award decisions made by the agency. Bid protests provide the bidding contractor an opportunity to make sure their competition for government contracts is fair and objective. There are two main types of bid protests. “Pre-award” protests challenge the terms of the government solicitation, while “post-award” protests challenge the way the agency evaluated the bid and who was finally awarded the contract. A contractor that believes it may have been the victim of improprieties in the government contracting process has a number of different options for how to resolve the issue.

The Armed Services Procurement Act of 1947 (ASPA), Federal Property and Administrative Services Act of 1949 (FPASA), and the Competition in Contracting Act (CICA) are the main laws under which federal government contracting takes place.  The Federal Acquisition Regulation (FAR) also represents a basic uniform structure for executive branch contracting that is only superseded in certain cases by agency regulations. The goal of these regulations generally is to ensure full and open competition for contracting with the government.

Before actually filing a protest it is important to consider the costs and benefits of taking action. These concerns include the merit of the allegations, the ability of the protesting bidder to prove they are an interested party and that they suffered prejudice, possible adverse customer reactions, the monetary costs of engaging in a protest, and the likelihood of winning a protest.

Where is a Bid Protest Adjudicated?

Another important consideration for any contractor contemplating a bid protest is what venue to select. There are three main venues for all contractors, with additional options available for those parties involved with certain agencies or regarding certain types of contracts. The three main venues are: the Government Accountability Office (GAO), the soliciting government agency itself and the Court of Federal Claims.

The best alternative is filing a protest with the GAO.  This is the best venue in most circumstances, as they have specialized experience in handling government contracts and bid protests. The GAO’s jurisdiction has recently been expanded to include TSA procurements, and task and delivery contracts worth in excess of $10 Million dollars. One disadvantage is the protective order that keeps all except outside counsel and experts from knowing the details of the protest. This means that unless you are filing a pre-award protest you are almost required to have an attorney to be successful.  Decisions at the GAO level are characterized as recommendations, since the GAO is an arm of the legislative branch. Therefore, agencies are not bound by a GAO opinion, but they will usually abide by the GAO’s guidance.

Another protest venue is to make a bid protest at the agency level.  This is the cheapest available alternative, and may be best if the bid protestor is leery of souring their relationship with the government agency in question. These types of protest are most common pre-award, and generally have a slim chance of success.  Filing a protest with the agency also comes with the risk of missing important deadlines if you decide to file with the GAO later.

The final choice for contractors is the Court of Federal Claims. Typically this option is used when the contracting agency overrides the automatic stay put in place during the GAO process, or if GAO or agency-level deadlines have passed. This process generally is the most expensive, although the decisions are binding.

What is Being Protested?

Bid protests can be broken down into two categories: pre-award and post-award. Pre-award protests must be filed before the proposals are received by the agency, though it is recommended that a proposal still be submitted to preserve a contractor’s standing in the matter for any future contentions. Following the lodging of a protest of this kind, the government agency is prevented from awarding the contract until the matter is resolved, with few exceptions. Some common reasons for filing such a protest are that the solicitation is unduly restrictive and overstates agency needs, the requirements and terms are ambiguous, or the requirements unnecessarily favor one offeror over the others.

Post-award protests must be filed within ten days of either the receipt of award notification or the debriefing date. After a protest such as this one is filed, the government agency must immediately suspend contract performance. Some common reasons for filing such a protest include deviation from stated evaluation criteria, relaxation of solicitation requirements, lack of meaningful discussions or unequal discussions, arbitrary technical/price/past performance evaluations, or organizational conflicts of interest.