Lost a Federal Contract Bid? How the Protest Process Works

To have loved and lost is better than never to have loved at all, but to have spent company money chasing an opportunity in federal sales and then to lose -- that stings.

Since even the best of companies lose out on contract opportunities with the fed, often there's little to do but cope. The first step is to request a debrief, if you're entitled to one. And if you're entitled to one, ask for it; when the government volunteers feedback, you should want to hear it. But if there's reason to believe that the government was prejudiced against you, there's recourse through the protest process.

There are three main types of protests:

* A protest that some aspect of the solicitation itself is prejudicial to your company.
* A protest that exclusion from competitive range or other aspect of the negotiated stage of a procurement was unfairly done.
* A protest that the final selection process was flawed.

These are pre-bid, pre-award, and post-award protests, respectively. Pre-bid and pre-award protests often get imprecisely lumped together as pre-award protests, since a pre-bid protest does occur before contract award. But the two are significantly different; protests made after government receipt of a proposal or quote have far more in common than protests made before the date bids are due.

The simplest are pre-bid protests against unduly restrictive solicitation, improper requirements bundling, ambiguous language, or unreasonable evaluation criteria.

Both pre-award and post-award protests can succeed if, for example, there is evidence that the agency held improper discussions with a competitor during negotiations, if it misunderstood your price, or if it made the award based on evaluation criteria different from those listed in the solicitation.

There are three forums for most (not small-business-specific) protests: the contracting agency itself, the GAO, and the Court of Federal Claims.

Filing a protest with an agency or with the GAO typically causes the agency to suspend further execution of the procurement, whether the protest is filed before or after a contract award. At the Court of Federal Claims, you can ask for a temporary restraining order or a preliminary injunction against the agency.

A protest to the GAO almost automatically activates a provision in the Competition in Contracting Act of 1984 (CICA) that requires agencies to suspend procurements while the GAO evaluates a protest. Agencies can override an internal or CICA stay, and the perception among experts is that agencies are more likely to do so when the stay order originates from itself.

For better or worse, agency-level protests are relatively rare, since most protest experts doubt agencies' ability to fairly evaluate themselves. Agency-level protests also lack the kind of document disclosure process that the GAO facilitates. Keep an eye on GAO deadlines for filing a protest. Once you blow GAO timeliness deadlines for filing a protest, there's no going back. The GAO is finicky in the extreme about enforcing its timeliness rules.

NEXT: Who Are The Interested Parties?

Only "interested parties" can file a protest, and for the most part it's pretty clear who is one. The legal definition of an interested party accepted by the GAO and the Court of Federal Claims is ’an actual or prospective bidder or offer or whose direct economic interest would be affected by the award of the contract or by failure to award the contract.’ Post-award, that means an offeror. Pre-award, that means companies considering participation in the competition. Subcontractors, or potential subcontractors, are not considered an interested party.

It is possible to resolve a problem with a solicitation's requirements or evaluation criteria without having to file a protest. During some solicitations, there is a period before the response deadline during which companies can ask for clarifications, and those requests for clarification often result in ameliorative amendments to the solicitation language.

Even if there's no question-and-answer period, you can still send questions and comments to the contracting officer in writing.

If you gain no relief, you must file a protest before the deadline for submitting a solicitation response. This is true regardless of whether you choose to file at the agency level or with the GAO. The Court of Federal Claims has a strong precedent establishing the same deadline. Filing a protest with an agency or the GAO will cause the agency to suspend work on the procurement. A protest with the court can cause the agency to voluntarily suspend work, but unless you convince a court judge to issue an injunction or a restraining order, there's nothing to compel an agency to wait for the ruling.

If you decide to first file with an agency and the agency rejects your protest, you can still file with the GAO or the court. If you go to the GAO, you have a 10-day filing period after the agency rejects your protest. Should the deadline for submitting a solicitation response fall within the 10-day period following agency rejection, you can still proceed with the GAO protest.

The 10-day period for filing with the GAO starts ticking when the agency delivers an ’adverse action’ against your protest. But the agency need not necessarily inform you of that adverse action, and you’ll be responsible for realizing that it occurred under the GAO's application of the legal doctrine of constructive knowledge. For example, the agency can make it clear that it's denying your protest by changing the solicitation language, but not in a way that resolves your objections.

The preceding information was adapted and digested from the book ’The Inside Guide to the Federal IT Market,’ published by Management Concepts Press. For more information, visit www.insideguidetofederalit.com/.

Steve Charles is co-founder and executive vice president of immixGroup, which helps technology companies do business with the government. He is a frequent speaker and lecturer on technology and the federal procurement process. He can be reached at [email protected].