5 Things You Should Know: Bid Protests

You’ve poured precious time and resources into a proposal, only to lose out on the award. Making matters worse, the agency’s explanation of the award shows that it didn’t reasonably evaluate your proposal. What can you do?

Here are five things you should know about bid protests.

  1. A bid protest can win a contract—or lose one.

A protest can help you win an award. In a pre-award protest, you can challenge any unclear or unfair terms in a solicitation. In a post-award protest, you can challenge any unreasonable or unequal aspects of the evaluation of your proposal. If successful, a pre-award or post-award protest can help you win a contract.

But just as you can protest an evaluation, your competitors can also protest a contract awarded to your business. If so, it’s a good idea to intervene in the protest to help protect your award—the government won’t necessarily look out for your interests.

  1. You can file a bid protest with the agency, at the Government Accountability Office, or at the Court of Federal Claims.

Agency-level protests are the simplest and may be the least expensive option. Protesters simply file a written protest, and the agency itself provides its written decision.

GAO protests are perhaps the most common type of bid protest. After receiving the protest, the agency will file its response (and provide evaluation-related documentation, if the protester is represented by counsel). The protester then files a reply to the agency report (called “comments”) and, after briefing is completed, GAO will issue a written decision.

Going to court is a protester’s most forceful (and possibly the most expensive) option. But don’t anticipate a dramatic closing argument to convince a jury that the agency messed up the evaluation; much of the process is based on written briefing, the case will be heard by a judge instead of a jury, and oral arguments may be conducted by telephone.

  1. Act fast: bid protests can be waived if not timely filed.

No matter where you file a bid protest, you must do so by the applicable deadline. The bid protest deadline can be very short—in some cases, only ten days after you know (or should know) of the basis for protest. So act fast: even the most boneheaded or prejudicial evaluation errors probably won’t be considered if you don’t timely file your protest.

  1. You can represent yourself (but probably shouldn’t).

You don’t have to have counsel to file a protest with the agency or GAO. But you probably should, because procurement law is an intricate subject and self-represented protesters often struggle with technical nuances and substantive complexities. And if that’s not enough reason to seek representation, consider this: your counsel can get access to the confidential source selection information pertinent to the evaluation and award. In many cases, these documents hold the key to winning a protest.

  1. A bid protest can win you a contract.

Yes, this fifth point is the same as the first. But after spending significant time and resources into a proposal, you should consider whether it makes sense to devote still more to a bid protest. In some cases, it won’t. But in others, filing a protest might help win your business a contract. In fact, according to GAO’s most recent report, protesters received a positive outcome (either through voluntary corrective action or a sustained protest) in 46% of the actions filed in 2016.

***

There you have it: five things you should know about bid protests. If you’re considering a protest, call me to discuss your options.