United States: Post-Award Protest Primer Series: Part 1

Last Updated: July 6 2017
Article by Daniel E. Chudd and James A. Tucker

Part 1:  An Introduction to Bid Protests

Welcome to the first in a new series of articles on post-award bid protests!  A lot of misunderstandings and misinformation surround the bid protest, and traps abound for the wary and unwary alike.  To dispel some of this confusion and explore some of the substantive and procedural issues peculiar to protests, we are launching this series of posts to walk you through a post-award bid protest.  This series will discuss common procedural pitfalls, examine many of the most common procurement errors we encounter, and offer practical suggestions that may prove helpful whether or not you ever file a protest.

A bid protest is a challenge to an alleged impropriety in a solicitation or other procurement error that prejudices the protester.  Bid protests have been around for a long time—at least since the 1930s, when the Comptroller General began issuing decisions on public procurement disputes.  Bid protests provide aggrieved offerors with a relatively efficient process for obtaining relief, but they also help ensure the integrity and regularity of the federal procurement system.  Protests may occur before contract award (generally, as challenges to the terms of a solicitation or as objections by offerors excluded from the competitive range before an awardee is selected) or after award (generally, as challenges to the evaluation of proposals or selection of an awardee).  This series will focus on post-award protests, which are the most common type of protest.

In general, there are three fora for bringing a bid protest:  the Government Accountability Office (GAO) (a legislative-branch watchdog agency headed by the Comptroller General), the Court of Federal Claims (a specialized trial court whose main task is adjudicating money claims against the federal government), and the procuring agency itself.  Depending on the circumstances of a particular case, each forum will have its pros and cons.  In this series, we will focus particularly on protests at the GAO because that is where the bulk of the protests are filed, but we also will touch on aspects of and differences in protests at the Court of Federal Claims and protests to an agency.  You can see some of the differences in the timelines of a GAO and Court of Federal Claims protest in our earlier infographics: GAO Timeline and COFC Lifecycle.

Each of the three fora has its own timeliness rules.  Challenges to the terms of a solicitation (in any of the three fora) usually must be brought before the date set for submission of proposals.  At the GAO or an agency, other kinds of protests generally must be brought within ten days of when you knew or should have known of the basis of protest, whereas the Court of Federal Claims lacks any definite deadline for post-award protests.  There are important exceptions to these rules, which we'll cover later in this series.

Timing also plays a role in the effect the protest filing has on the challenged procurement.  Generally, if a GAO or agency-level protest is filed before contract award, the agency is prohibited from awarding the contract until the protest is resolved.  It is not prohibited from accepting proposals, conducting discussions, evaluating offers, or anything else short of contract award.  For post-award protests filed at the GAO, the Competition in Contracting Act (CICA) provides for an automatic stay of performance if the protest is filed and the GAO notifies the agency of the filing within ten days after contract award or within five days after a required and timely requested debriefing.  Under certain circumstances, an agency can override either the pre-award or post-award stay, but that is relatively uncommon.

Protests usually impose severe limits on the ordinary communication between a client and its attorney.  If you protest to the agency itself, you generally file your protest and simply wait for a decision.  ( See our blog post on the unique features of agency-level protests here.)  At the GAO and Court of Federal Claims, by contrast, the agency must produce a procurement record, and the parties are required to make responsive filings based on the record and the agency's legal arguments.  This process at the GAO and Court necessarily involves arguments over proprietary and source-selection sensitive information:  competitors' proposals and pricing, agency evaluation documents, and other material that cannot be released to the public.  To allow these arguments, the GAO and Court issue protective orders, which allow the protester's (and awardee's) counsel—but not the clients themselves—to receive and review very sensitive information for purposes of the protest.  Occasionally, outside consultants (typically technical or cost experts) are admitted to the protective order to assist the lawyers.  The terms of a protective order lead to a unique feature of GAO (and Court) bid protests:  the lawyers (and any admitted consultants) are strictly and perpetually limited in the information they are permitted to communicate to their clients.  As a result, a firm's choice of protest counsel involves an unusually high level of trust, since the client will never see most of the attorneys' work product and must rely (sight unseen) on the attorneys' judgment concerning the merits of the protest.  The parties may mutually agree to the release of redacted versions of protected material, but otherwise the protected information is shielded from the protester's eyes.

Finally, a company should carefully weigh various legal and business considerations before filing a protest.  On the legal side, are you able to allege reasonably plausible protest grounds, or are your concerns pure speculation?  Can you articulate legally cognizable procurement errors, or are you merely disagreeing with the agency's subjective judgment or policy goals?  Are your potential protest grounds timely, or were they required to be raised earlier?  Are the potential errors significant enough to have made a difference to your likelihood of being awarded the contract – that is, were you "prejudiced" by the error?  Will a sustained protest provide you an opportunity to amend your proposal through discussions or will it merely involve reevaluation?  We'll discuss these issues and a number of potential protest grounds in later installments in this series.

On the business side, a company is often understandably nervous about filing a protest against its government customer – and sometimes its principal or only customer.  Agencies should understand that bid protests are by design a normal part of the federal procurement system, and in our experience most do.  But the offeror knows its customer best and should take business sensitivities into account.  In particular, companies should weigh options very carefully before accusing a customer of bias or bad faith.  Even if there is reason to suspect the customer is guilty as charged, those grounds are notoriously difficult to prove, and publicly asserting them is unlikely to win you friends in the contracting office.  We'll discuss "bad" protest grounds later in this series.

With that general background set, we're ready to walk through a bid protest.  Our next installment will start at the beginning for post-award protests:  the award letter and debriefings.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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Daniel E. Chudd
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