Intervening in a GAO bid protest can be an important way to protect a federal contractor’s award. But when can you and should you intervene? Here’s how this might come up. As a federal contractor, you work hard to submit the best proposal you can, and then find out you win the award. A few days after, you find out you’ve been protested as part of a GAO bid protest. What are your options for responding to such a protest? Below, I’ll discuss the five things you should know about intervening in a GAO bid protest.
- Intervene to monitor the bid protest and protect an award.
When a protest is filed, an intervenor has the right to review all pleadings in the case, get admitted to a protective order (through an attorney), and file pleadings in the case. So, intervening is a way to monitor how the agency is defending its award to your company. In most cases, the agency will vigorously defend the award, but it can be helpful for the awardee to have its counsel involved as well.
2. Who can intervene?
The awardee of a procurement has the right to intervene. The GAO rules state that an intervenor is “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.” 4 CFR § 21.0. GAO will generally always allow the awardee to intervene. If you’re not the awardee, you generally cannot intervene.
3. An intervenor, through an attorney, can get access to agency documents and other protected information.
Just like the protester, the intervenor can, through counsel, be admitted to the GAO protective order. Once admitted to the protective order, the intervenor’s counsel can view source selection information such as how the agency came to its evaluation and award decision and potentially to view proposal information from the protester. This allows the intervenor to submit arguments to rebut any allegations set forth in the protest.
4. An intervenor can file pleadings.
An intervenor can file pleadings in the GAO bid protest. One common pleading is requesting dismissal of the protest. A request for dismissal, if granted by GAO, can result in the protest going away quickly without reaching a decision. A common ground for dismissal is that the protest is untimely, such as if the protest was filed more than 10 days after the time when the protester came to know about the basis for the arguments made in the protest.
In some cases, the intervenor can file its own motion to dismiss, or join in with the agency’s motion to dismiss. In addition, the intervenor is allowed to file comments to highlight and bolster agency arguments made in the agency report.
5. The intervenor can work with agency counsel.
In some cases, the intervenor can cooperate with the agency counsel to have a coordinated strategy against the protest. Even if the intervenor’s pleadings are relatively limited, the intervenor can highlight and enhance the arguments made by the agency. Working with agency counsel can also mean discussing strategy in responding to the bid protest and finding out what the agency counsel thinks about the protest.
Intervening in a GAO bid protest is not required. The agency will defend the award against the protest (assuming it doesn’t take corrective action). But intervening gives the awardee a seat at the table and the ability to monitor and file pleadings in the case. If it’s an important award that is protested, seriously consider whether an intervention may be be beneficial.
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