Small businesses often search for ways to increase their competitiveness for federal government contracts. A sometimes overlooked method is to try to better define the procurement’s requirements in a manner that improves a firm’s chances of being awarded the contract, through a pre-award bid protest.
Here are five things you should know about pre-award protests:
1. What is a pre-award protest?
A pre-award protest is a protest that challenges the terms of a specific solicitation.
For example, a protester might argue that the solicitation is improperly restricted (or not) for a particular socioeconomic designation, or that the technical requirements unfairly tilt the award to one offeror. The protester might also allege that the solicitation violates an applicable law or regulation, or that the agency has otherwise failed to consider an important aspect of the procurement.
2. How does a pre-award protest differ from a post-award protest?
While a pre-award protest challenges the terms of a solicitation, a post-award protest challenges the agency’s evaluation of proposals.
Here, it’s important to note that the terminology for these two types of protests is a bit imprecise. That is, it’s best to think of pre-award protests as instead being pre-bid protests (as we’ll see in item 4). Post-award protests might instead be thought of as post-evaluation protests.
3. Where can a pre-award protest be filed?
A pre-award protest can be filed with the agency itself, GAO, or the Court of Federal Claims.
Frankly, given the cost associated with such protests, it’s not often that pre-award protests are filed at the Court of Federal Claims. In my experience, pre-award protests tend to be filed with the agency or (more commonly) GAO.
4. What is the deadline to file a pre-award protest?
No matter where a pre-award protest is filed, the deadline is essentially the same: pre-award protests must be filed before the proposal submission deadline.
Importantly, arguments challenging defects in a solicitation are generally waived if not raised as part of a pre-award protest; in other words, once the deadline for proposals passes, the terms of the solicitation are “locked in,” and a disappointed offeror can’t later complain that those terms were unfair or unreasonable. So, if you believe that a solicitation’s terms might be unreasonable or its requirements unfair, it’s best to submit a pre-award protest before the deadline to submit proposals passes.
5. Why should a company consider filing a pre-award protest?
A pre-award protest can be a useful tool for small business federal contractors to enhance their competitiveness under a particular solicitation. If successful, a pre-award protest might help reshape the foundation of that procurement to make it more likely that a business will win an award.
Consider, for example, if an agency sets a procurement aside for small businesses based on incomplete market research. If a large business were to successfully protest that set-aside designation through a pre-award protest, it could lead the agency to reopening the procurement on an unrestricted basis. Thus, that large business might be eligible for a procurement it was once precluded from bidding on.
Or consider if an agency were to release a solicitation for a piece of fire-fighting equipment but included an unreasonable limitation on the size of tank for the fire suppressant. If an otherwise eligible offeror might be excluded from competition based on their equipment’s larger tank size, that offeror might challenge the rationale for the size limitation. If successful, the offeror could be allowed to bid on the job.
These are only two examples. Most, if not every, procurement could have terms that are vague, inconsistent, unreasonable, or downright unfair. Depending on the impact of those provisions, it could make sense to file a pre-award protest to help shape the competitive landscape.
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