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

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Daniel E. Chudd
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.