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By: Paul Hawkins and Jake Noe To protest or not? This is a question many government contractors face frequently whether because they were not chosen for award of a contract or because they are facing unfair or unreasonable solicitation terms. This article is the first in a short series on protests where we will cover how and when a contractor can and should use available, formal protest/appeal processes to challenge an agency’s actions in connection with a procurement. We will cover pre- and post-award bid protests, how the procurement Q&A process and debriefings play into protests, where and how to file bid protests, differences in the available bid protest forums, and last, size and status related protests with the SBA (including NAICS appeals). This first article focuses on the pre-award bid protest—what it is, where and how to file one, and as you will see most importantly when to file such a protest. First, a pre-award protest is a challenge to the terms of the solicitation itself, regardless of whether it is a Request for Proposals (RFP), a Request for Quotations (RFQ), or an Invitation for Bids (IFB). The GAO bid protest regulations define it as a protest “alleging improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals[.]”1 Such improprieties can include the following: the terms are ambiguous, the specifications in the solicitation are unreasonable, the solicitation unreasonably restricts competition, or the solicitation terms (or structure of those terms) deviates from applicable laws and regulations in some way (e.g., many recent protests have focused on the SBA’s rule regarding mentor-protégé joint venture past performance and capabilities). Additionally, an agency’s failure to set aside a contract to small businesses (or other socioeconomic status) as required by law can be the subject of a pre-award protest. It should also be noted that pre-award protests can be filed when an offeror’s proposal is rejected prior to contract award because it was excluded from the competitive range. Pre-award protests can be filed with the Government Accountability Office (GAO), the Court of Federal Claims (COFC), or the procuring Agency. A future article will go into more detail on the pros and cons of each forum. For our purposes now, while there could be advantages for using one of the other forums, the GAO often provides the best forum for efficient, objective review of a pre-award protest. For example, a pre-award protest filed either with the GAO or the Agency will suspend award of the contract (subject to override). But at COFC, such suspension would not be automatic, and the protester would need to obtain injunctive relief from the court. Most importantly (and this is the biggest takeaway from this article!), the deadline for a pre-award protest challenging the solicitation’s terms is “prior to bid opening or the time set for receipt of initial proposals.”2 This is true generally no matter in which forum you decide to file your protest (the GAO, Court of Federal Claims (COFC), or the Agency). So, bottom line, the pre-award protest is due before the proposals are due. Critically, to the extent an issue should have been raised in a pre-award protest (i.e., an apparent defect in the solicitation’s terms), that issue cannot later be raised in a post-award protest and would be deemed “waived” by the offeror. All too often, contractors are unaware of this rule or fail to recognize an issue that must be raised in a pre-award protest and miss the deadline. For protests of exclusion from the competitive range, the GAO rules state the deadline for filing a protest on these types of issues is generally ten (10) days either from when the offeror knew or should have known the basis of the protest or the close of a timely requested and required debriefing. Importantly, offerors must understand deadlines for requesting debriefings and in which situations they are required by rule (a future article in this series will dive deeper into debriefings). After you have properly filed the pre-award protest, the clock starts for the government’s response and the GAO’s decision. Under the GAO’s rules, the agency has thirty days to respond to the protest.3 However, with a pre-award protest, the agency may be more likely to take corrective action in order to address issues and not hold the procurement process up. Corrective action would likely include amending the solicitation to address the issue raised in your protest. Of course, the agency could dig in its heels, which would then require additional filings, document production, and responses leading up to a decision. The GAO has 100 days from the date the protest is filed to issue its decision.4 So, as you can see, the pre-award protest can be a valuable tool at the offeror’s disposal and may represent the only option to ensure later a fair and legal evaluation in a procurement. However, like with any protest process, it is rife with procedural pitfalls. Offerors should be engaged from as early as possible in the procurement process and know when and how to exercise its pre-award protest rights. Many times, engaging experts and counsel at these early stages ensure protestable issues are properly raised for later protest or even appropriately addressed and resolved at those stages to avoid a protest entirely. Be on the lookout for the next article in this series focusing on debriefings and post-award bid protests! Notes: 1-See 4 C.F.R. § 21.2(a)(1). 2- Id. 3-See 4 C.F.R. § 21.3(c). 4-See 4 C.F.R. § 21.9(a). Disclaimer: Nothing in this article is, or is intended to be, legal advice. If you wish to discuss your particular and specific situation more in-depth, please reach out to one of the government contracts attorneys at Reaves GovCon Group by emailing [email protected]
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