Separating Fact from Fiction – Bid Protests: How They Work, Why to File, and What to Expect
Losing a potential contract is a gut punch no matter the reason, but it’s a Mike Tyson, Floyd Mayweather, Rocky Marciano gut punch when the outcome comes as a complete surprise. You had it in the bag! You probably followed a strict process; had a rock solid technical and management approach; filled your proposal lifecycle with rinse and repeat compliance checks by multiple reviewers (dare we say, maybe you were even the incumbent?!) and still lost. Now what? What can we do?
Bid protests can be a topic of both fear and hope for government contractors, especially small and medium contractors looking to secure a foothold, grow, or just survive by holding onto hard-fought wins. The problem is that, like so many things, they are misunderstood. So, let’s wade into the bid protest pool and make things a bit clearer for you.
Bid Protests: How They Work and Why to File
The first action item to complete is sending an immediate request for a debrief – really, this should be done after every bid, even if the contract is awarded to your company. You, as the interested party, will submit the debrief request in writing per the solicitation instructions, as soon as you receive notice of award. Requesting this debrief will provide ample information to better prepare for or against a protest based on the feedback you receive.
So, I’ve had a debrief, and I’d like to protest.
Understand there are three federal bid protest levels:
1. Judicial action brought at the United States Court of Federal Claims (COFC).
2. Protest filed with the Government Accountability Office (GAO).
3. Agency-Level protests filed with the agency conducting the procurement
For a post-award protest, the company must file to GAO, generally:
• No later than ten days after the basis for the protest is known or should have been known, or
• Within ten calendar days of a “required” debriefing is closed, whichever is later.
The solicitation package typically includes bid protest instructions. Bid protests deal with specific claims. For instance, size issues are generally brought outside of the bid protest process. They can be filed in two places: the Government Accountability Office (GAO) and the U.S. Court of Federal Claims (COFC). For COFC, the company has a year from award to file. For pre-award protests, such as removal from the competitive range, the protest must be filed within ten days of when you knew or should have known about the removal.
However, if you want the automatic stay under the Competition in Contracting Act, that is only available at GAO. And to receive that, you must file within five calendar days after the “required” debriefing closes or ten days after award of the contract, whichever is later.
At the COFC, there is no automatic stay, and you must file a motion for a temporary restraining order or preliminary injunction and argue the point, usually with briefs and a hearing before a judge. Thus, GAO is the usual route contractors go to receive the automatic stay and performance or award of the contract, depending on whether the protest is post-award or pre-award. There are exceptions to every rule, and each situation may implicate different laws or cases. Therefore, never assume you are timely or that a debriefing is “required” without consulting counsel knowledgeable in the process as the timelines can be challenging to calculate.
Additionally, for task orders under non-GSA Schedule IDIQ (indefinite-delivery, indefinite-quantity) contracts, you cannot file a bid protest at the COFC and must go to GAO. For a bid protest to even be possible, the task order must be valued at greater than $10M for civilian agencies, or $25M for DOD agencies. Smaller orders are not protestable, except by filing a complaint with the agency ombudsman.
Bid Protests: What to Expect Once You File
Once you file, there is confusion about what to expect and what GAO or the COFC will do. Many contractors believe that the bid protest process will mean a third party (GAO or COFC) will re-review their proposal. That is FALSE! The GAO or COFC gives great deference to the agency, and they will not review the merits of any proposal. Instead, the bid protest allows GAO or the COFC to review whether the agency followed the law or whether the agency’s evaluation was reasonable. The GAO or COFC will NOT substitute its judgment for the agency on matters of fact or technical issues, and great deference is given to the judgment of the agency. Thus, arguments that a contractor should have received an “outstanding” not just “good” or things of that nature are not very persuasive. That said, there are reasons to raise such arguments. Consult your legal counsel for additional strategic details.
So, what will GAO or the COFC do then? Well, if the GAO or COFC finds that the agency’s evaluation was unreasonable, or if the agency violated the law, GAO or the COFC will, most likely, require the agency to perform a re-evaluation of the proposals and make a new award determination. Importantly, the agency, upon re-evaluation, is free to make an entirely new award decision. That means the award can be “flipped” to the protester, or a third party or the original award can be confirmed. There is no mechanism for GAO or the COFC to be involved in the re-evaluation. Instead, if you do not like the new award determination, you have to file a new bid protest, and, generally, the new award determination stands on its own, so the protest is a clean slate. Keep in mind, you cannot raise prior errors as those are no longer relevant. Note that an agency, if they see a losing protest on their hands, often takes “corrective action” before the GAO decision to allow them to go back and fix errors. If this corrective action occurs before the due date for the agency report (30 days after a protest is filed), the agency is allowed to take action without penalty. If the agency takes corrective action after the agency report, they are required to pay the protester’s attorney’s fees and costs for those protest grounds which were meritorious. That is a legal determination, and there is no guarantee that all costs will be recoverable, but some cost recovery is likely.
Conclusion
This blog provides a quick rundown of the bid protest process at a very high level, but hopefully, it helps to demystify the confusion and cut through the misinformation. There are exceptions to every rule, and case law has created a whole series of nuances depending on the type of procurement, the facts surrounding the award or elimination, and agency actions.
Protests can certainly be overwhelming, costly, and stressful for any team. A lot of small businesses look at business development, capture, and proposal support as a cost of doing business rather than an investment in winning contracts. Invest in a proven, vested, and experienced bid and proposal management team to significantly improve your chances of winning the contract. Protests are rampant, especially for large IDIQ contracts. For that reason, contractors should ensure they are working with an experienced proposal team, not just during the proposal process but also in a protest. Before making any assumptions, involve your proposal team and talk to counsel to determine what the best action may be for your company in your specific situation.
Co-Authors: Victoria Woodlock, ProposalHelper and Isaias “Cy” Alba, PilieroMazza
Isaias “Cy” Alba is a Partner in PilieroMazza’s Government Contracts Group. He can be reached at ialba@pilieromazza.com or at 202-857-1000.
Victoria Woodlock is a Senior Proposal Manager with ProposalHelper’s Proposal Management Division. She can be reached at victoria@proposalhelper.com