Bid Protests: Protecting Your Rights in Federal Procurement Decisions
Josh Schnell
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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowIn 2017, the federal government spent approximately $500 billion buying goods and services from the private sector. On Feb. 9, 2018, after the shortest government shutdown yet, Congress enacted legislation that is expected to increase this spending by up to $300 billion over the next two years. Plus, President Trump recently unveiled his $1.5 trillion infrastructure plan to repair and rebuild the nation’s crumbling highways, bridges, railroads, airports, seaports and water systems.
Put simply, the federal government is getting ready to spend a lot of money, which means new opportunities for companies to win government contracts. As existing government contractors know, however, competing for federal contracts can be an expensive, time-consuming, and occasionally frustrating endeavor. If you plan to dedicate the resources necessary to compete for a government contract, you better be sure you understand your rights to challenge the government when it improperly awards that contract to a competitor.
Challenges to the government’s procurement actions are called bid protests, and they typically fall into one of two categories. First, there are pre-award bid protests. As you would expect, a pre-award protest challenges the government’s actions prior to having made the award. For example, a pre-award protest might allege that the technical specifications in the government’s solicitation are written in a way that overly restricts competition or unfairly favors one of your competitors. Other common pre-award protest grounds involve ambiguous solicitation provisions, unreasonable evaluation criteria and small business set-aside issues. You should know you are likely waiving your pre-award protest rights if you fail to assert them before you submit your offer. Therefore, if you identify problems when preparing your offer, you should raise them with the contracting officer immediately, and if necessary, file a pre-award protest to protect your rights.
Second, there are post-award bid protests. A post-award bid protest challenges the agency’s contract award decision. Post-award protests can involve almost any aspect of the decision-making process that led to the award decision. For example, the agency may have improperly evaluated the offerors’ technical proposals, past performance or cost and pricing information. In some cases, the agency may have relied on unstated evaluation criteria to award the contract. Post-award protests can also include claims that the agency unlawfully awarded the contract based on bias, bad faith or a conflict of interest. Although the timing can vary based on circumstances, post-award protests generally must be filed almost immediately after you learn of the grounds for your protest.
After identifying valid grounds for a pre- or post-award protest, you must determine whether you qualify as an “interested party.” This determination is critical, because only interested parties have legal standing to file protests. An interested party is an actual or prospective offeror “who possesses a direct economic interest in the procurement.”[1] In other words, only those with “skin in the game” can pursue bid protests. For pre-award protests, interested parties typically include anyone interested in submitting an offer. In the post-award context, however, interested parties are usually limited to those offerors who would have won the contract but for the agency’s alleged procurement violations.
Once you determine your interested party status, you must decide where to file your bid protest. Protests may be filed with the (1) contracting officer, (2) U.S. Government Accountability Office or (3) the U.S. Court of Federal Claims. Each of these forums has its own rules, procedures and available remedies. Further, each has unique pros and cons you will want to consider when determining which one is right for the facts associated with a particular protest.
Government spending is soaring, and the time is right for Indiana businesses to seek new opportunities to sell goods and services to the federal government. With these increased opportunities, however, comes the potential for sloppy, biased or otherwise unlawful agency procurement actions. Losing a contract doesn’t have to mean the game is over. If you feel like the government has taken shortcuts or committed improprieties related to your offer, you should consider filing a bid protest. It’s a step that may help you to win the contract, and it also helps to ensure the integrity, fairness and transparency of the federal procurement system as a whole.
Joshua Schnell is a partner at Ice Miller LLP, where he leads the Firm’s Government Contracts and Grants Practice Group. Josh can be reached at (202) 572-1603 or joshua.schnell@icemiller.com.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
[1] Sys. Application & Techs., Inc., 691F.3d 1374, 1382 (Fed. Cir. 2012) (citing Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009); see also 31 U.S.C. § 3551(2).