A Quick Guide Through the Bid Protest Process
Posted By The Federal Practice Group Worldwide Service || 5-Oct-2016
In a perfect world, a government contractor could seamlessly transition from proposal to award to contract performance without delay or dispute. Unfortunately, disputes surrounding the government contract award process are common, and most government contractors will find themselves involved in some form of a bid-related dispute. Although Federal Acquisition Regulation (“FAR”) 33.103(b) requires federal contractors and the government use their “best efforts to resolve concerns . . . through open and frank discussions,” oftentimes a formal protest is the most effective way to correct errors and/or challenge the award of a contract. Given this reality, it is imperative that federal contractors understand the intricacies of the bid protest process in order to defend their own contract awards and to timely assert their rights as a protester.
1. The Right to Protest
Only an “interested party” may file a protest. To be considered an interested party, the protestor must be an actual or prospective bidder whose direct economic interest would be negatively impacted by the award of a contract or by the failure to award a contract. FAR 33.101.
2. Three Protest Venues
There are three different venues where an actual or prospective bidder can file a bid protest: (1) the procuring agency, (2) the Government Accountability Office (“GAO”), or (3) the U.S. Court of Federal Claims (“COFC”).
- Agency Protests (FAR 33.103). Agency-level protests are encouraged as they may provide a speedy and cost-effective resolution to correct errors or the award of a certain contract. FAR 33.103 requires all federal agencies to implement procedures offering a “procedurally simple” and “expeditious resolution of protests.” The FAR also requires agencies to “make their best efforts” to resolve protests within 35 days from the date of filing. One reason for the quick turn-around is because agency-level protests do not require the parties engage in an exchange of information as the agency is in possession of the materials needed to issue its decision. Forms of relief a protestor may receive as a result of a successful protest, include but are not limited to: awarding of the contract to the protestor, solicitation clarification, reperforming of an evaluation, and payment of proper costs. If a protestor is unsatisfied with an agency decision, the protestor may still have the ability to file a protest with the COFC.
- GAO Protests (FAR 33.104). For protests filed before the GAO, the FAR mandates GAO issue its recommendation within 100 days from the date of filing. Unlike the agency and COFC, the GAO can only review the procurement to determine whether or not the agency is acting lawfully. The GAO has no direct enforcement powers. However, if the protestor receives a favorable recommendation from GAO, an agency then has 60 days to fully implement the GAO recommendation. If a protestor is unsatisfied with the GAO recommendation, the protestor may still have the ability to file a protest with the COFC.
- COFC Protests (FAR 33.105). The COFC is the most formal bid protest forum, offering the protestor judicial review of its bid protest. This judicial process is often more expensive and time-consuming, as it is requiring of motion-pleading and hearings. One positive of filing with the COFC is that there are no set time restraints for post-award bid protests. However, in some cases, extreme delay in filing a post-award protest may impact the Court’s decision when determining whether or not to grant an injunction. It is also important to note that a protestor who files its original protest with the COFC, cannot then bring its protest before the GAO or agency on the same matter. When reviewing a filing, the COFC will look to see whether the agency’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 28 U.S.C.A. §1491(b)(4) and 5 U.S.C.A. §706(A)(2). Although the COFC offers a protestor the maximum amount of due process, this standard for reviewing bid protests can be more favorable to the agency. Nevertheless, a favorable decision handed down by the COFC, such as an injunction, is immediately and directly enforceable upon the agency.
3. Debriefing, Pre-Award Protest, Post-Award Protests
- Pre-Award Debriefing. A bidder removed from competitive range or excluded from contract competition before award may submit a written request for debriefing. A debriefing is an agency-written explanation on why the bidder was excluded from competition. The bidder is required to submit its request for debriefing to the contracting officer within 3 days of receiving notice of exclusion. FAR 15.505.
- Post-Award Debriefing. A bidder must file a written request for a post-award debriefing within 3 days after the bidder receives notice of the agency’s award to an alternative bidder. FAR 15.506.
- Pre-Award Protests. A pre-award protest is for when a protestor challenges the terms and conditions of a solicitation. This type of protest must be brought before proposals are due and received by the agency. FAR 33.103; 4 C.F.R. § 21.2(a).
- Post-Award Protests. A post-award protest often challenges the acceptance or rejection of a bid or proposal, and/or award or proposed award of a contract. A protestor has 10 days, from when the basis for protest is known or should have been known, to file a post-award protest with the GAO or agency. FAR 33.103; 4 C.F.R. § 21.2(a).
4. Contract Performance Stay
- Agency Stay. A protestor must file its protest within 10 days of contract award, or within 5 days of debriefing, in order to properly avail itself of the stay. If a pre-award protest is filed, the agency must stay the award. FAR 15.505-506; FAR 33.103.
- CICA Stay. One advantage of filing a protest with the GAO is the application of a Competition in Contracting Act (“CICA”) stay of contract award or performance. A protestor must file its protest within 10 days of contract award, or within five days of debriefing, in order to properly avail itself of the stay. If a pre-award protest is filed with the GAO, the agency must delay the award. FAR 15.506; FAR 33.104.
- COFC Performance Stay. There is no automatic stay that applies to a protest before the COFC. Rather, the protestor must meet the standards for a preliminary injunction: (1) there is a likelihood of irreparable harm with no adequate remedy at law, (2) the balance of harm favors the protestor, (3) there is a likelihood of success on the merits, (4) the public interest favors granting of the injunction.
5. Common Trends
From FY2001 to FY2014, the amount of procurements protested before the GAO has increased significantly, from around 700 to 2100. The GAO reported in FY2014 that the most common grounds for sustaining these protests were a result of agencies:
- Not adhering to established evaluation criteria;
- Issuing flawed selection decisions;
- Failing to treat all bidders on equal ground;
- Failing to maintain adequate documentation; and
- Making unreasonable technical evaluations.
6. Increase of Bid Protests against the DOD
According to the GAO, bid protests filed against the DOD before the GAO have increased from around 600 in FY2001 to around 1,200 in FY2014. From FY2001 to FY2014, the number of DOD procurements that were actually protested against increased from 421 to 1,138, resulting in an increase of 170%.
7. Relief Rate
From FY2008 to FY2014, GAO reports it has sustained around 17% of the protests filed before it. However, this relief rate does not account for protests distinguished through contracting agencies’ voluntary actions. The relief rate actually rises to 42% when taking into account the amount of protestors who receive relief through recommendation and/or voluntary action of the agency.
By Lauren Brier, Associate, Federal Practice Group
"At the Federal Practice Group Worldwide Service, our attorneys are experienced in challenging the propriety of an award or request for proposal, and in defending the award if our client is the awardee. We understand the bid protest process, the issues that can be raised, the timelines that must be adhered to, and what is at stake for the businesses we represent."