When contractors think of GAO Bid Protests, most think of the process from the perspective of the protester. However, the contract awardee is not without a voice in the bid protest process at GAO. While the agency will generally defend the contract award decision regardless, the awardee itself can also have a seat at the table. In this installment in our “Why File” series, we will explore why a contractor would want to file an intervention in a GAO Bid Protest.
First, what even is an intervenor in a GAO bid protest? The GAO’s bid protest regulations define “intervenor” as: “an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.” So, you can “intervene” in a Bid Protest if you are an awardee or could get an award if the bid protest is denied (i.e., the protester loses). You typically cannot intervene when a protester challenges solicitation terms, though.
That brings us to the question on everyone’s mind, why file as an intervenor at GAO?
There are a multitude of reasons a contractor would file as an intervenor at GAO, but the biggest reasons are: Access to Documents; Ability to File Pleadings; and Ability to Assist Agency Counsel.
Access to Documents
As you likely know, typically, bid protests will contain protective orders. Thus, most, if not all, of the pleadings and information involved in the bid protest will not be releasable to the public, at least not without redactions. However, if a contractor who has been designated for an award, (or is in line for an award), wants to view confidential protest-related information, the contractor can file an intervention request with GAO. Intervenor attorneys can then apply to be admitted to the protective order. Once GAO admits the intervenor counsel to the protective order, admitted counsel can review all the documents and filings immediately without redactions. Of course, they can’t share those documents or protected information with their clients or those not admitted, but they will be able to represent the intervenor’s interests with the full information involved. Without intervening, this would not be possible.
File Pleadings
An intervenor is not just a silent participant. Under GAO regulations, intervenors (along with the agency) can ask for dismissal of a protest . GAO regulations also don’t limit who can file comments on the agency report, simply saying “Comments on the agency report shall be filed within 10 days after the agency has filed the report.” This gives the intervenor the ability to argue for dismissal of the protest, and a way to directly argue against the protest allegations and in support of the agency’s evaluation in the comments stage of the bid protest. Consequently, not only does an intervenor have a seat at the table, but they also have the ability to directly combat the protester in filings. Absent intervention, an awardee or potential awardee has no right to be heard in the protest.
Assisting Agency Counsel
Finally, while not as direct as filing a pleading in response to the protest, intervenors can still impact the agency as it works to protect its award decision. Intervenors, once admitted to the protective order, can discuss the protest with agency counsel. The goal of these communications is to discuss arguments against the protest, previous filings, protest grounds, the planned agency report, and overall bid protest strategy. This often will allow the agency to focus on arguments it deems the strongest, and potentially have the intervenor spend more time on additional portions of the protest the agency may not have as much time to work on by itself. Or, the intervenor can simply provide its opinion to the agency on potential next steps from the perspective of a contractor. The bottom line is, that when there is an intervenor, the defense of the agency’s contract award decision now has even more parties to help brainstorm and fight against the protest, as well as to provide awardee’s input on arguments.
While these are all great advantages and reasons to file as an intervenor at GAO, there are some other items to keep in mind. First is timing. Often, intervenors will wait too long to file, and miss out on the timelines to file pleadings, such as comments or dismissals. So, intervening is something that can squander its advantages if you wait too long to be an intervenor. Additionally, this concept is not unique to GAO bid protests. The United States Court of Federal Claims (COFC) also includes the ability to intervene, and those intervenors also get to access filings and agency documents, and to draft pleadings.
Hopefully, next time you hear that your contract award may be protested at GAO, you can now answer the question of “why should we file as an intervenor?” And once you answer that question, if you do want to intervene, make sure to reach out to a federal contracting attorney, such as ourselves, to discuss the process further and get your seat at the bid protest table.
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