Bid Protests – Protesting An Award Decision without Antagonizing Your Government Customer
General Counsel, P.C.
Contractors often worry whether a bid protest will antagonize the Government Customer and hurt the client’s chances for other Federal Government Contracts. The answer is always: it depends. It depends on the individual Contracting Officer or Contracting Officer’s representative and their level of business sophistication and professionalism. The more savvy and professional Government representatives understand that bid protests are part of the Federal Government Contracting procedures. These are remedies that Congress has provided to aggrieved contractors by law. Contracting Officials usually understand that a contract loss could be a major blow to a Government Contractor. They also understand that professional people acting in good faith can disagree. The important thing to remember is to keep your protests on a professional level – raising only well grounded protests made in good faith. It is also important to consider what and where you are protesting.
Probably the most important first step, is to get as much information from the Agency as possible. If your contract was awarded under FAR Part 15, Negotiated Procurement, you are entitled to a debriefing, if you ask for one. FAR § 15.506. You have only three days to ask for one, so stay on top of it. Once you schedule your debriefing, take the time to prepare. The FAR explains what information you will get and what information you can’t get, so don’t waste your questions on what you know the contracting officer can’t tell you. But, write down your concerns and questions before you go in. If these aren’t covered in your debriefing, be sure to ask. Listen to what the CO says and take good notes. But, keep it on a professional level, and don’t go in looking for a fight. The CO will really appreciate that.
Based on what you learn in the debriefing, you may feel that the Government has made a mistake in its award decision. What options do you have for protesting? There are ways to protest without directly challenging the judgment of your Government Customer, who has made an award to your competitor. Not all protests are equal in that respect. For example, on procurements set aside for small businesses, 8(a) contractors, HUBZone contractors, or Service-Disabled, Veteran Owned Contractors, you can protest a prospective awardee’s eligibility or qualifying status for these set asides without involving the Contracting Officer, except to the extent that the Contracting Officer is the designated recipient of the protest. For example, if you do not believe that the prospective awardee qualifies as a small business, you may protest that company’s size status. These "size protests" by an interested contractor must go to the Contracting Officer, but the Contracting Officer does not decide the protest and does not have to defend the award or the awardee. Upon receipt of a size protest, the Contracting Officer must forward the protest to the SBA Regional Office with jurisdiction over the awardee for an initial written decision. 13 C.F.R. § 121.1006 (2008). At that point, the awardee has to defend itself before the designated SBA Regional Office without the assistance or involvement of the Contracting Officer or other contracting representatives.
On procurements set aside for 8(a) contractors, an interested party may protest the small disadvantaged business ("SDB") status of an 8(a) contractor who has been selected for award. These protests are rare because the SBA will not consider such protests unless they relate to changed circumstances after the SBA’s initial certification of the contractor’s 8(a) status. 13 C.F.R. § 124.1018 (2008). The SBA will not consider, for example, a protest alleging false or misleading information in the 8(a) contractor’s SDB application. The SBA will consider, for example, a protest alleging that the designated minority member no longer qualifies because the member’s net worth now exceeds the maximum of $750,000 allowed under 13 C.F.R. § 124.104(c)(2) or that the minority member no longer has unconditional ownership of the 8(a) company in violation of 13 C.F.R. § 124.105 (2008). Like size protests, SDB protests are filed with the Contracting Officer, but the Contracting Officer immediately forwards the SDB protest to the Division Chief for Small Disadvantaged Business Certification and Eligibility (DC/SDBCE) in Washington, D.C. 13 C.F.R. § 124.1020 (2008). Like size protests, SDB protests do not challenge any Contracting Officer’s decisions and do not involve the contracting officials in any meaningful way.
On procurements set aside for HUBZone contractors, an interested party may protest the HUBZone status of a prospective awardee. Like size protests and SDB protests, the Contracting Officer is merely the designated recipient of the protest, and must immediately forward a HUBZone status protest to the SBA Director, Office of HUBZone, Washington, DC. 13 C.F.R. § 126.8901(e) (2008).
On procurements set aside for Service Disabled, Veteran-Owned ("SDVO") contractors, an interested party may protest the SDVO status of a prospective awardee. 13 C.F.R. § 125.24 (2008). Like size protests, SDB protests, and HUBZone status protests, SDVO protests are served on the Contracting Officer, but the Contracting Officer does not participate in deciding the protest. The Contracting Officer forwards an SDVO protest to the Director, Office of Government Contracting, Washington, D.C. 13 C.F.R. § 125.25(e) (2008).
Each of these SBA "status" protests do not challenge any direct decisions made by the Contracting Officer or other Source Selection Official, and therefore are likely to be less antagonistic to your Government customer.
There are other ways to challenge an unfavorable award decision more directly, without incurring the wrath of a thin-skinned Contracting Officer. For example, you may protest directly to the Contracting Officer – referred to in the regulations as an "agency protest." FAR § 33.103 (2008). The Federal Acquisition Regulations (FAR) encourages all interested parties to try to resolve their concerns "at the Contracting Officer level through open and frank discussions." But, if you cannot convince your Contracting Officer through discussions, you may still keep your protest "in-house" by filing an "agency protest." FAR § 33.103(d) (2008). Each federal agency has their own internal procedures for handling agency level protests. Most are very informal and may involve only the Contracting Officer and usually the Contracting Officer’s legal counsel. Some agencies, such as the Army Materiel Command ("AMC"), pride themselves on having an objective, independent, and formal review procedure. See http://www.amc.army.mil/pa/COMMANDCOUNSEL.asp. AMC offers this procedure as an "alternative dispute resolution forum, rather than filing a protest with the Government Accountability Office or other external forum." Even if an agency does not offer such an objective procedure for resolving agency protests, the protester always has the right to insist upon "an independent review of their [agency] protest at a level above the Contracting Officer." FAR § 33.103(d)(4). While it does offer a possible face-saving way for a Contracting Officer to correct an open or obvious error in the award decision, an agency-level protest, in my experience, is almost always denied. While an agency-level protest does not foreclose the possibility of protesting to the Government Accountability Office ("GAO"), an agency-level protest will usually foreclose the possibility of achieving an automatic stay of performance of the awarded contract upon the filing of a GAO protest. 4 C.F.R. § 21.2(a)(3) (2008).
Even a direct protest to the GAO can and should be handled in a professional and objectively fair manner that should not antagonize your Government customer. GAO rules require that the basis of a protest be stated in a "detailed" manner, and GAO does not tolerate unfounded speculation or fishing expeditions to look for protest grounds. 4 C.F.R. § 21.1(c) (2008). Most importantly, GAO will not accept a protest founded solely "upon information and belief." Siebe Environmental Controls, B-275999.2, Feb 12, 2997, 97-1 CPD ¶ 70. Using the words, "upon information and belief" will usually flag your protest ground for immediate dismissal, often on GAO’s own motion. If you have a reasonable basis for alleging a violation of procurement statutes or regulations, you should be able to state it objectively and clearly. If the allegation has merit, the Contracting Officer, in consultation with agency legal counsel, has the option to take corrective action to fix the problem. Often, corrective action will involve reopening the competition and giving the protester a new chance at award. If the protester’s allegations are stated clearly and in as much detail as possible, the Agency counsel has the option of responding to the allegations in an Agency Report. 4 C.F.R. § 21.3(c) (2008). Since the Agency did the evaluation, the Agency usually has the most knowledge about the protest issue and can provide GAO with a complete factual basis to resolve the dispute in an objective and professional manner. Based on the GAO’s own rules, the attorney’s rules of professional responsibility, and good business judgment, a bid protest to the GAO should never antagonize your Government Customer.
The final option for protesting an award decision is the one that is most likely to cause rancor with your Government Customer. Any interested party has the right to take a bid protest to the U.S. Court of Federal Claims ("CoFC"), even a protest that has been fully adjudicated on the merits in another forum. 28 U.S.C. § 1491(b)(1) (2008). The CoFC will consider, de novo, a bid protest that has been previously denied by either the Agency or the GAO. There are several legitimate and respectable reasons to take a protest to the Court of Federal Claims, which we cannot go into here. Probably the best known reason is that there are no timeliness requirements for a post-award bid protest at the CoFC, whereas GAO has a strict 10-day requirement to file a protest ground. But, taking a previously denied bid protest to the Court of Federal Claims is often considered an escalation of the battle with your Government Customer. At the CoFC, you are now in "federal court" against your customer, whereas a GAO protest or an Agency protest is more like an alternative dispute resolution or administrative proceeding. At the CoFC, the Government must be represented solely by lawyers from U.S. Department of Justice, so the Government Customer and Agency counsel must now work through a new set of non-Agency lawyers who are not familiar with the Agency’s procedures or its procurement actions. The Agency has to convince their new attorneys first, who then must present the Agency position to a CoFC judge. If you are concerned about maintaining a relationship with your customer, it is difficult to do so when making a bid protest to the Court of Federal Claims. However, sometimes it is worth it; the Court of Federal Claims can and does sustain protests that have been previously denied by the GAO or the Agency.
At each protest level, protesting should be a carefully considered business decision. If the merits are strong, it can be presented in an objective and professional way that can be respected by all professional parties in any available forum. If the protest grounds are speculative or based on conjecture or innuendo, it is better to move on to the next procurement rather than to waste resources on litigation that will not gain your company anything but the enmity of your customer.