When federal procurement agencies fail to adhere to statutory or regulatory guidelines for procurement, solicitors or potential solicitors may pursue a bid protest to challenge the contracting agency’s process or decision. There are numerous circumstances which may trigger a bid protest, including: (1) soliciting or requesting offers; (2) cancelling solicitations or offers; (3) awarding or proposing to award a contract; (4) terminating or cancelling a contract based on improper award; and (5) converting functions performed by the government to the private sector.
As soon as the contractor learns of the circumstances which would trigger a possible bid protest, the contractor needs to take immediate action in order to meet the strict deadlines for properly proceeding with a bid protest through the complex and fast-moving process. This article outlines the steps to be taken for a bid protest at the Government Accountability Office (“GAO”).
First Step: Request Formal Debriefing
Before proceeding with a bid protest, an unsuccessful offeror should request a formal debriefing from the contracting agency to obtain information regarding: (1) the unsuccessful offeror’s weaknesses and past performance information; (2) the evaluated cost and technical ratings of the successful offeror in comparison to the unsuccessful offeror; (3) overall rankings of all offerors; (4) the rationale for the award; and (5) responses to questions about the source selection process and whether the applicable authorities were followed. An unsuccessful offeror should request the debriefing in writing within3 calendar days of notification from the contracting agency of exclusion from the competition or award to a competing offeror.
Second Step: Determine Proper Forum For Bid Protest
Next, the contractor must determine the forum in which to proceed with the bid protest: (1) the GAO (to the extent subject to GAO jurisdiction); (2) the U.S. Court of Federal Claims (“COFC”); or (3) the procuring agency. Each of these forums has their own procedures, but this article will focus on the GAO procedures because the GAO is the most commonly used forum. There are numerous factors to consider when making a determination regarding the forum in which to protest a bid. It is highly recommended to consult knowledgeable legal counsel to determine the best forum.
- Who Is Entitled To Submit A Bid Protest With GAO?
Under GAO regulations, a bid protest can only be pursued by an “interested party” or any “actual prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Subcontractors and suppliers do not have standing to pursue a bid protest.
- Legal Basis For A Bid Protest
The GAO will not substitute its own judgment for that of the contracting agency or conduct a de novo review of the contracting agency’s procurement actions and procedures. Instead, the GAO will determine whether the contracting agency properly complied with procurement statutes and regulations and whether the contracting agency had a reasonable basis for its decision and adequate documentation thereof. Some examples of protest grounds include: (1) failure to evaluate in accordance with stated evaluation criteria; (2) unequal discussions; (3) failure to evaluate for price realism; (4) unreasonable evaluation of criteria; (5) evaluation based on unstated evaluation criteria; (6) affiliation; and (7) decisions regarding set-aside or sole source.
The protester will also have to demonstrate competitive prejudice – i.e., but for the contracting agency’s actions, the protester would have had a substantial chance or reasonable likelihood of award.
Third Step: Determine Deadline For GAO Bid Protest
A bid protest must be filed with the GAO either: (1) before the bid opening or by the specified time if the alleged violations are apparent before bid opening or the time set for receipt of initial proposals; (2) within 10 calendar days after the alleged violations become known or should have become known, whichever is earlier; or (3) if seeking a stay of the award and/or contract under the Competition in Contracting Act (“CICA”), within 5 calendar days after the debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required. It is particularly important to file within the period for an automatic stay of award or performance to ensure that a successful protestor may be afforded proper relief. It is highly recommended to consult legal counsel, as there are nuances which impact these timeframes.
Fourth Step: Submit Bid Protest To GAO
Within the proper timeframe, a protesting contractor must submit a written protest which includes: (1) a detailed statement of the legal and factual grounds for the protest, including copies of supporting documents; (2) sufficient information to determine that the protesting contractor qualifies as an “interested party;” (3) sufficient information to demonstrate that the protest is timely; (4) a request for a ruling by the Comptroller General of the United States; and (5) a statement of the relief requested.
At the time of the bid protest submission, the protesting contractor may also: (1) request documents from the contracting agency; (2) seek a protective order to protect confidential and/or proprietary information during the proceedings; and (3) request a hearing, explaining the reasons that a hearing is needed to resolve the protest (hearings are rarely granted, however).
To the extent that the protesting contractor wants expedited review under the GAO’s express option, the protesting contractor must submit a request within 5 calendar days of filing the protest.
Fifth Step: Obtain Contracting Agency’s Response
Once the bid protest is filed, the GAO will notify the contracting agency, thereby starting the clock on the agency’s 30 calendar days to respond to the bid protest (absent circumstances which may alter the response timeframe). The contracting agency’s response must include: (1) the contracting officer’s statement of facts and best estimate of the contract value; (2) a memorandum of law; and (3) all documentation related to the bid or solicitation and evaluation thereof.
Sixth Step: Submit Comments To Contracting Agency’s Response
After receipt of the contracting agency’s response to the bid protest, the protesting contractor has 10 calendar days to submit written comments. If the contracting agency’s response was required under the shorter 20 day timeframe, the protesting contractor’s response is due within 5 days after the contracting agency’s response. If the protesting contractor needs additional documents whose existence became evident after receipt of the contracting agency’s report, the protesting contractor must request those additional documents within 2 calendar days of discovering the existence of the documents. Based upon the discovery of information and documentation during this process, within 10 days of discovery of additional bases for protest, the protesting contractor can then file additional or supplemental protest grounds.
Seventh Step: Receive Recommendation From GAO
Generally, the GAO must issue a recommendation within 100 days under the normal timeframe or within 60 days under the express option. If a hearing has taken place, the protesting contractor must file written comments on any hearing within 5 calendar days of the hearing.
Eighth Step: Options Upon Unsuccessful GAO Bid Protest
To the extent a protesting contractor is dissatisfied with the GAO’s determination of a bid protest, there are two options: (1) request that the GAO reconsider its determination; or (2) appeal the GAO decision by filing a bid protest with the COFC.
- GAO Reconsideration
To request GAO reconsideration, a protester must file a request within 10 calendar days after the basis for reconsideration is known or should be known, whichever is earlier. The request for reconsideration must include a detailed statement of the factual or legal bases for reconsideration, including any legal errors or failure to consider information.
- COFC Appeal
The protester can file a lawsuit with the COFC alleging that the contracting agency’s procurement actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”
Navigating the federal government contracting arena is a complex task requiring knowledge, skill, and experience. In order to avoid “traps,” maximize the chances for success, and obtain a stay of award or performance during the pendency of the bid protest, it is highly recommended that legal counsel be obtained to evaluate a possible protest as soon as possible.