Four Things Not to Do When Asserting Federal Bid Protest

Posted by Guest Author on March 17, 2020

Four Things Not to Do with Federal Bid Protests

By Maria Panichelli, Partner and Chair of Government Contracting Department, Obermayer Rebmann Maxwell & Hippel LLP

In today’s competitive government contracting market, bid protests are a feature of many procurements. Whether you are asserting a bid protest, hoping to overturn an award to another contractor and obtain the contract you want, or defending against a protest brought by one of your competitors, a thorough understanding of bid protest processes and procedures is necessary for success. As an experienced government contracting attorney, I have assisted numerous clients in asserting and defending bid protests. Unfortunately, I see contractors make the same mistakes over and over again. Outlined below are some of the most common mistakes, misconceptions and myths regarding protests. Learn what not to do in federal bid protests!


 

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1)  Don’t Confuse Bid Protests With Size or Status Protests, or Size or Status/Eligibility Investigations

Sometimes you will hear the term “protest” used to refer to size or status protests, and not just bid protests. There are important differences between bid protests and size/status protests, the nature of the challenges at issue in each, and the procedures used for each. Understanding these differences is critical.

  • A bid protest is a challenge, raised by a contractor, alleging improprieties in the source selection process, i.e., instances where the procuring agency failed to act in a manner consistent with the solicitation and/or applicable law. These alleged improprieties may pertain to errors in a solicitation’s terms, errors in selection of contractors for (or exclusion of other contractors from) the competitive range, or errors pertaining to evaluation of bids/quotes/proposals and the source selection decision. 
  • Size/status protests are challenges, raised by a contractor, alleging that a contract awardee was not eligible to receive a set-aside contract. These protests are not based on any alleged agency error. These protests focus on whether the awardee is, in fact a small business (size protest), or otherwise meets the eligibility requirements of the applicable small business program (status protests).

As the party asserting the protest, winning requires you prove certain things in a bid protest, and other things in a size/status protest. The applicable laws are different. You file bid protests and size/status protests with different governmental bodies. As the party defending your award against a protest, your response rights, the format of your response, and the things you need to establish in your response, are different. Whether asserting or defending, the deadlines for filing or responding will be different. 

To further complicate matters, note that there are also size and status/eligibility investigations. Unlike bid and size/status protests, which are raised by other contractors (competitors of the awardee(s)) in connection with specific procurements, size and status/eligibility investigations are initiated by the Small Business Administration and/or the Department of Veterans Affairs (depending on which small business program is at issue). They do not have to relate to a specific procurement.  

In short, it is critically important to understand what type of challenge you are raising (or defending against), and which type of procedure you are dealing with. 

2)  Don’t File Your Bid Protests in The Wrong Place

Protests are only heard by specific adjudicatory bodies. You cannot file a federal protest in a local state court, or a federal district court, the way you might be able to file a private breach of contract action. You do not file them as “claims” under the Contract Disputes Act procedures. You cannot file before the Boards of Contract Appeal, as you would if you were appealing a Contracting Officer’s Final Decision (COFD).

Generally speaking, bid protests should be filed with one of three entities: the procuring agency, the Government Accountability Office (GAO), or the Court of Federal Claims (COFC). There are benefits and drawbacks to each. Different forums are better in different factual situations and you should consult a legal professional to see which forum might be best for you.

Keep in mind, however, that if your protest concerns a task order, your bid protest options are limited. When protesting a task order, you cannot file before the procuring agency or the COFC (unless your protest is on the grounds that the task order increases the scope, period or maximum value of the contract). You can only file before GAO and even then, there are minimum dollar value thresholds that apply and, further, different thresholds depending on whether you are protesting a Department of Defense (DoD) procurement or a civilian agency procurement.

As if this is not confusing enough, determining the applicable threshold can be further complicated when dealing with a procurement involving two agencies, or a government wide acquisition contract (GWAC), where, for example, one agency places task orders under another agency’s multi-agency contract (MAC). If you have questions about how to file – or if you can file – a task order protest, you should consult a legal professional.

3)  Don’t Forget to Differentiate Between Pre-Award and Post-Award GAO Protests (and the Applicable GAO Filing Deadlines for Each)

There are various types of bid protests, differentiated by where in the procurement cycle you are. 

  • If a prospective bidder/offeror believes there are problems with a solicitation’s terms, it can file a pre-award protest based on alleged improprieties in the solicitation. This can include, for example, allegations that the solicitation is ambiguous or contradictory, that it is inconsistent with applicable law, that it excludes required provisions (or includes prohibited provisions), or may be that the terms are unduly restrictive of competition.
  • In a negotiated procurement where the agency has established a competitive range, a contractor that is excluded from the competitive range can protest that exclusion. This is a pre-award protest challenging exclusion from the competitive range. These are usually based on allegations that the agency erred in comparatively evaluating offerors and selecting the “competitive range,” either because it failed to follow the terms of the solicitation, or acted inconsistently with applicable law.
  • Post-award protests, as the name implies, occur after an award is made. These can challenge different aspects of the source selection decision and can include arguments based on, for example: the use of unstated evaluation criteria; disparate treatment of offerors; improper application of evaluation factors; flawed best value analysis; etc.

It is important to understand that these different types of protests have different filing deadlines. One of the most common mistakes we see is confusion over pre-award protest filing deadlines. Many contractors think that all protests should be raised post award. But, this is not the case. Pre-award protests concerning alleged improprieties in a solicitation must be filed prior to bid opening or the time set for receipt of initial proposals. Protests about exclusion from the competitive range must be filed within 10 days of your required debriefing (which itself can be another complicated subject). In either situation, if you wait to protest until after award, you will likely be too late, and your protest will be dismissed.

4)  Don’t Think That All Debriefings Extend Your GAO Protest Filing Deadline

The GAO regulations lay out the deadlines for filing different types of protests. As set forth above, pre-award protests that challenge the terms of a solicitation must be filed before the deadline for bid/proposal submission. All other protests should be filed no later than 10 days after the basis of the protest is known or should be known. As a practical matter, in most cases, that is going to mean 10 days after award. The exception to this rule is for “protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required.” Those should be filed 10 days after the debriefing.

Many contractors are confused about this distinction and think that all GAO protests should be filed 10 days after a debriefing. This misconception has caused many contractors to miss protest filing deadlines at the GAO. In fact, the 10-day protest clock starts ticking from the date of a debriefing (as opposed to the date of award) only if the debriefing was both required and timely requested

So when are debriefings “required?

  • Required: Debriefings are required for competitive procurements under FAR Part 15 (Contracting by Negotiation). They are also required for any task or delivery order over $5.5 million under FAR 16.505(b)(6). Moreover, the National Defense Authorization Act (NDAA) 2020 mandates that these regulations be revised to require debriefings for any task/delivery order over the simplified acquisition threshold, so in the near future, debriefings will be required in that case as well.
  • Not Required: Debriefings are not required for General Service Administration (GSA) Schedule Procurements under FAR Part 8. They are also not required for Sealed Bidding Acquisitions under FAR Part 14. Debriefings are not required for Commercial Item Procurements under FAR Part 12, or for Simplified Acquisition Procurements under FAR Part 13, either. However, in FAR Part 8 or FAR Part 13 procurements, in which an award was made based, at least partially, on non-price evaluation factors, while a “debriefing” is not required, the agency is required to provide “a brief explanation of the basis for the award decision.”  A “brief explanation” under FAR Parts 8 or 13 does not constitute a debriefing, and does not impact the normal rule concerning protest deadlines. It is also important to remember that agencies can provide debriefings even when they are not required. Which means, the fact that you had a debriefing does not necessarily mean a debriefing was, technically speaking, “required,” or that the debriefing you receive has any impact on your protest deadline.

If a debriefing is indeed required, the question then becomes when you need to request your debriefing to be considered timely. Pre-award debriefings relating to exclusion from the competitive range need to be requested in writing within three days of the date the contractor receives notice of exclusion from competitive range. Post-award debriefings need to be requested in writing within three days of the date the contractor receives notice of award. That said, it is always best practice to consult an experienced attorney at the first indication you might have a protest, to ensure compliance and timeliness with all requirements.

More on Bid Protests

As you can see, bid protests can be a complicated and confusing proposition. Discover additional details to remember and issues to consider during the webinar Bid Protests 101: Everything You Need to Know About Asserting & Defending Protests.

About the Author

Maria Panichelli is a partner and the chair of the Government Contracting department at the law firm of Obermayer Rebmann Maxwell & Hippel LLP. She focuses her practice exclusively on federal government contracting, guiding her clients through every stage of the procurement process. Maria’s practice includes pre- and post-award bid protests, contract interpretation and performance counseling, the preparation of Requests for Equitable Adjustment and Contract Disputes Act (CDA) claim litigation, statutory and regulatory compliance counseling, resolution of subcontractor disputes (including the negotiation of liquidating agreements, the use of pass-through claims, and Miller Act claims), contract terminations, and all aspects of small business procurement. Maria is active in a number of federal contracting associations, is a frequent lecturer at agency, government contracting, and small business conferences, and blogs about government contracting topics weekly at govconexaminer.com.