Many bid protests we handle at Koprince McCall Pottroff are filed after the contract has been awarded to an offeror. However, sometimes there are issues that are apparent in the solicitation that require clarification or correction prior to the bidding or proposal deadline. In these situations, potential offerors can file a pre-award protest that challenges solicitation terms, but, as with most GAO matters, there are strict deadlines that must be adhered to if the protestor wants to avoid her protest being dismissed. While pre-award protest is the common term, remember that a challenge to a solicitation’s terms is due before the proposal deadline.
First, what is a pre-award protest? While post-award protests address the agency’s evaluation of proposals, pre-award protests challenge the terms of the solicitation. For example, a pre-award protest may argue that the solicitation is improperly restricted for a particular socioeconomic designation or the solicitation’s technical requirements are unfairly restrict offerors from presenting a novel solution. Pre-award protests may also assert that the solicitation violates an applicable law, like the VA Rule of Two that requires a solicitation be set aside for service-disabled veteran-owned small businesses (“SDVOSB”) if two or more verified and capable SDVOSBs are identified that can do the work at a reasonable price.
Timing is very important for a pre-award protest, but luckily there is a fairly simple rule to remember: a pre-award protest must be filed before the proposal (or equivalent document like a quotation) is due. 4 C.F.R. § 21.2 discusses the time for filing bid protests at GAO, with § 21.2(a)(1) discussing pre-award protests.
The specific deadline depends on the type of solicitation.
- If a solicitation was issued prior to bid opening, and the alleged improprieties in the solicitation are apparent prior to bid opening, then the protest must be filed prior to bid opening.
- If a solicitation and bid opening happen concurrently, the protest must be filed at any time “prior to the time set for receipt of initial proposals.”
It is important to note that “days” means calendar days, unless the deadline falls on a weekend or federal holiday. In those instances, the deadline is pushed to the next business day.
Also, pre-award protests can be filed with the agency itself, GAO, or the Court of Federal Claims, though they are most frequently filed with GAO.
You may now be wondering how pre-award bid protests can help a small business. Well, pre-award protests can help small business federal contractors enhance their competitiveness under a particular situation by reshaping the foundation of that procurement to make it more likely that a business will win an award.
Let’s return to the VA Rule of Two once again. The VA sets a procurement aside for small businesses in general based on incomplete market research, believing there were no eligible SDVOSBs capable of performing. If an SDVOSB were to successfully protest that set-aside designation through a pre-award protest, it could lead the agency to reopen the procurement on a restricted basis solely for SDVOSBs, enhancing the SDVOSB contractor’s odds of being awarded the contract.
While 4 C.F.R. § 21.2(c) states that GAO may consider untimely protests, in practice, that pretty much never happens, and we wholeheartedly advise against it. Further, if a solicitation’s terms are clearly ambiguous, but the potential offeror does not file a pre-award protest, the potential offeror will be deemed to have effectively waived any arguments challenging the solicitation.
For this reason, it is important to file a pre-award protest if you believe the solicitation’s terms are unfair or unreasonable. Because you won’t get a second chance.
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