Bid Protests: I Just Lost Out On A Government Contract!
The following are frequently asked questions concerning bid protests to the Court of Federal Claims (“CFC”) or the Government Accountability Office (“GAO”).
For important updates on bid protest law, click here.
Q. What is a bid protest?
A. A bid protest is a challenge to the award or proposed award of a contract for procurement of goods and services or a challenge to the terms of a solicitation for such a contract. If a contractor who bids on an open government contract believes that it lost unlawfully, or if the award of a government contract was procedurally or substantively defective, a contractor may protest its elimination from the competitive process, or ask to have the contract award set aside and the competition reopened. If a potential protest issues cannot be resolved at the agency level, a protest may be filed with the General Accounting Office (“GAO”) or the Court of Federal Claims (“CFC”).
Q. Who may file a bid protest?
A. A party has standing to file a protest if it is an “interested party,” meaning an actual or prospective bidder on a government contract with a direct economic interest in the outcome of the bidding process. Generally speaking, in order to be an interested party, a protester must have potentially been in line to be awarded the contract in question if the protest were sustained.
Q. What’s the first thing I should do?
A. One of the best things you can do is ask the government for a “debriefing” – an explanation of why you lost. You must act very fast – ask the government for a debriefing AS SOON AS you find out you lost – ideally by return mail or fax. Debriefings can save you time, money, and perhaps most importantly, your reputation. The company needs to notify the government of the request to conduct any required debriefings within three days. An attorney need not be present at a debriefing, but the company should strongly consider consulting with a lawyer beforehand.
Q. What if the debriefing proves to me that I should have won?
A. You can sue the government. It’s called a bid protest – a lawsuit that can be as informal as an aggressive letter directly to the agency, an e-mail or letter to the Government Accountability Office (GAO), or a formal lawsuit to the United States Court of Federal Claims. The Court of Federal Claims should always be considered first, but protests to GAO is often used, and agency level protests may be advisable depending on the circumstances.
Q. Do I have to travel to Washington, DC to file a protest?
A. No. Protests routinely are done through the mail or electronically (fax or e-mail) although you might need to attend a hearing in Washington.
Q. If I want to file a protest, what’s the most important concern?
A. Time. The deadline for filing a protest can be short – generally 10 days after learning why you lost depending on the situation. Certain rights, such as an automatic stay, could be lost after just 3 days. Some issues, like the contents or terms of the solicitation, have to be protested by the due date of offers/quotes/bids. Unfortunately, some companies wait a few days before contacting counsel, which may not be a good idea given how short this important deadline is.
Q. What are my odds of winning?
A. Overall, not that bad (depending naturally on the facts of the case). For example, GAO statistics show that, of all protests that GAO hears, about 45% end up with the protester winning something – another chance to compete in a re-solicitation, for example.
Q. Should I protest to the GAO or the Court of Federal Claims?
A. The forum to use will depend upon the facts and circumstances of the case. Albo & Oblon prefers to file in the Court of Federal Claims whenever possible.
Q. Why does Albo & Oblon prefer to file in the Court of Federal Claims?
A. The Court of Federal Claims has many important advantages over the GAO. First the Court of Federal Claims considers violations of law or regulations and arbitrary and capricious agency action; the GAO can only consider violations of law or regulations. Second, the GAO process permits the agency to “fix” its problems on the fly through the Agency Report prepared after the protest is filed, effectively moving the goal posts during the protest itself by permitting it to add facts to the case. The Court of Federal Claims locks the agency into its pre-filing position for a decision on the merits. Finally, federal judges can simply be more independent than GAO hearing examiners, who are federal lawyers. Click here for a white paper on the chief advantage of the Court of Federal Claims over the GAO.
Q. Is it cheaper to file a bid protest in the GAO than the Court of Federal Claims?
No. If you are going to hire an Albo & Oblon lawyer to prosecute your bid protest, the fees are comparable no matter the forum.
Q. Do I need a lawyer for a GAO protest?
A. No, business people at times do their own protests to GAO. Having an experienced lawyer, though, gives a company several not-so-obvious advantages. For example, a protest using a lawyer makes the agency open up for closer examination more of the agency’s files and thus increases the protester’s chances of finding government mistakes.
Q. Do I need a lawyer for a Court of Federal Claims lawsuit?
A. Yes. In a federal lawsuit a company usually cannot represent itself. In addition, an outside attorney can obtain and use confidential information that not even a company’s “in-house” lawyers can see.
Q. If I use a lawyer and win, can I get the government to pay my legal fees?
A. Winning protesters CAN get a portion of their attorney fees back, although there is no guarantee of that. Sometimes winning can involve other helpful direct benefits such as being provided an additional procurement opportunity.
