Friday, September 16, 2022

How To Protest A Government Contract Award

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What Is A Bid Protest

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A bid protest is a right created by statute that allows government contractors to challenge an agencys decision regarding the ground rules for a procurement and the eventual award decisions made by the agency. Bid protests provide the bidding contractor an opportunity to make sure their competition for government contracts is fair and objective. There are two main types of bid protests. Pre-award protests challenge the terms of the government solicitation, while post-award protests challenge the way the agency evaluated the bid and who was finally awarded the contract, with a few minor exceptions. A contractor that believes it may have been the victim of improprieties in the government contracting process has a number of different options for how to resolve the issue.

Before actually filing a protest it is important to consider the costs and benefits of taking action. These concerns include the merit of the allegations, the ability of the protesting bidder to prove they are an interested party and that they suffered prejudice, possible adverse customer reactions, the monetary costs of engaging in a protest, and the likelihood of winning a protest or obtaining any meaningful relief.

You Must Have Standing To File Government Contract Protests

Although you may seem to have a legitimate concern to file a government contract protest against your competition, you must first have standing to file the protest for any federal contracts awarded. At the Court of Federal Claims, having standing to bring a bid protest is governed by 28 U.S.C. § 1491, which imposes more stringent standing requirements than Article III. Weeks Marine, Inc. v. United States, 575 F.3d 1352, 1359 .

To bring the protest, government contractors must show that they are an interested party,28 USC 1491. To show that you are an interested party, you have to overcome certain legal hurdles. They include:

  • You are n actual or prospective bidder and
  • That you possess the requisite direct economic interest and was prejudiced. Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 . You must show that you had a substantial chance of winning the contract but for the problem you are asking the court to address. See Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 .

S For Filing A Protest

There are two types of grounds for protest: pre-award and post-award. As their names imply, each occurs at a different stage of the bidding process.

Pre-award protest grounds are based on the accusation that the RFP was unclear, biased against them, or unduly restrictive.

Post-award protests are filed when it is alleged that the awarding agency did not follow established bid award criteria, showed favoritism or had a conflict of interest.

In order to file either type of protest, a party must establish that they are an interested party, meaning they have an economic interest in the outcome of the bid in question. In general, most protests are lodged after the contract has been awarded, even the government has terminated the contract.

Although both state and federal agencies take steps to guarantee that all bids for work or equipment are awarded fairly, there are bound to be instances where a party believes itself wronged. The government contract protest process gives their grievances a voice.

To learn more about the government contract protest process, you can post your legal need on UpCounsels marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

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Are You Considering A Bid Protest

If you want to learn more in depth information about bid protests, you can watch our Lunch & Learn webinar with McCarter and English LLP, Bid Protests: Whats Worth the Fight and How to Fight it. If you want to move forward with a bid protest or have questions, our consultants can direct you to someone who can help you with the process.

If you have questions about your GSA Schedule contract or submitting government solicitations, we are here to help.

About Stephanie Hagan

Stephanie Hagan is the Content Writer and Digital Editor for Winvale where she helps the marketing department continue to develop and distribute GSA and government contracting content. Stephanie grew up in Sarasota, Florida, and earned her Bachelor’s of Arts in Journalism and Rhetoric/Communications from the University of Richmond.

3951 Westerre Parkway, Suite 250Richmond, VA 23233

Protest Before A Procuring Agency

Bid Protests of Government Contracts: Good for Business or Relationship ...

Agencies are expected to resolve a protest within 35 days of receipt. A procuring agency halts an award to a contract until the protest is resolved. An exception to this rule is if the agency determines there are urgent and compelling reasons or if awarding the contract is in the best interest of the Government. Agencies are expected to provide a well-reasoned explanation of the agencys protest decision.

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An Agency Level Appeal

Some solicitations or RFPs will announce that there is an agency level appeal for agency level protests. That appeal usually goes to a senior contracting staff director of procurement in a regional office.

Sometimes the value in filing an agency level bid protest is to get the real or official story behind why your companys bid or proposal was not awarded. This is especially true if the agency doesnt give you a thorough debriefing under FAR part 15. The Agency level or GAO protest will at least inform you of the governments official reason for not awarding your company the contract.

Relationship Of The Disputes Statute To Pub L85

Requests for relief under Public Law85-804 are not claims within the Disputes statute or the Disputes clause at 52.233-1, Disputes, and shall be processed under subpart 50.1, Extraordinary Contractual Actions. However, relief formerly available only under Public Law85-804 i.e., legal entitlement to rescission or reformation for mutual mistake, is now available within the authority of the contracting officer under the Contract Disputes statute and the Disputes clause. In case of a question whether the contracting officer has authority to settle or decide specific types of claims, the contracting officer should seek legal advice.

A contractors allegation that it is entitled to rescission or reformation of its contract in order to correct or mitigate the effect of a mistake shall be treated as a claim under the Disputes statute. A contract may be reformed or rescinded by the contracting officer if the contractor would be entitled to such remedy or relief under the law of Federal contracts. Due to the complex legal issues likely to be associated with allegations of legal entitlement, contracting officers shall make written decisions, prepared with the advice and assistance of legal counsel, either granting or denying relief in whole or in part.

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Additional Grounds For Protest

Speaking of Additional Grounds for protest, you have those 10 days after you receive the Agency Report to review that record and look to see whether there are any additional grounds for bid protests that were not apparent at the time of the original filing. As an example, if you learn through the review of the administrative record that the Contracting Officer was engaged in discussions with the awardee and did not engage in discussions with you or your company that would be the basis to raise an additional grounds for protest. That will usually start a new clock for the government and for you to file responses and for the GAO to engage in an interactive process. The GAO will normally inform the parties about how long they have to respond and reply to opposing motions.

What Is The Legal Standard Of Review When Protesting Federal Government Contract Awards

Service Contract Reports (SCRs) Overview

Federal contractors often make the mistake of just focus on the dispute at hand. However, you must also understand the legal standard of review that the court must abide by. In addition to highlighting the alleged agency error, you also have to convince the Court of Federal Claims that the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and was prejudicial to your company. 28 USC 1491 5 U.S.C. § 706 Glenn Defense Marine PTE, Ltd. v. United States, 720 F.3d 901, 907 . Without this additional factor, your bid protest will fail.

The basis for attacking the agency: When protesting federal government contract awards, you have to show that the contracting officer entirely failed to consider an important aspect of the problem, somehow have an explanation for its decision that runs against the evidence before the agency during the evaluation or solicitation stage, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Assn of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 .

Avoid thinking that filing a bid protest means that the court substitutes the agencys business judgment. At the Court of Federal Claims level, and similarly at GAO, reviewing the agency action is limited to what the record shows. Its all about the record before the court.

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Three Types Of Bid Protests

We have just discussed the three venues where you can file bid protest at the agency, the Government Accountability Office, or at the Court of Federal Claims. If you file at the Court of Federal Claims, it is as the court describes, a trial on the briefs. The government is required to put together an administrative record, submit that administrative record to the court and your attorney. Importantly, you have to have an attorney at the court of federal claims, because there is a protective order in place in nearly all instances. So, if your protest is filed at the court of Federal Claims, then the court will put together a scheduling order and you will have to file a motion for judgment on the administrative record. Then the governments attorneys will file a response. Your attorney will file a reply and then the government replies again. Then normally, the attorneys meet in D.C. and conduct oral argument in front of the judge. Sometimes those oral arguments can be done over the phone, but normally they are done in person.

The First Step: Government Records Request

There is usually some statutory process for requesting public records from the government that relate to the bidding process.

For example, in New Hampshire, this process is called the right-to-know law. In other states, such as Florida, it is referred to as a sunshine law. At the federal level, it is called the Freedom of Information Act.

You should locate the applicable law in your jurisdiction and submit a written request to the government for documents concerning the bidding process. You should contact an experienced attorney to assist you so that you can ensure it is done properly.

The request can usually be submitted as a letter. It usually does not have to be filed in court. The letter can be brief and state simply, This is a written request for records under . I request that you provide the following documents . . . You should then identify, at a minimum, the following documents:

  • Other bidders proposals
  • Memorandums or other documents prepared by government officials
  • Notes prepared by government officials, including evaluation committee members and
  • Scoring records regarding the proposals.

The government usually has a maximum of several days to comply with and respond to this request. The government can usually either make the documents available for you to inspect and/or copy, or it can provide you with a set of either physical paper copies or electronic copies .

How Minor or Technical Can a Violation Be?

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Bid Protests : What Gsa Contractors Should Know About The Process

GSA Schedule | 5 Min Read

When you decide to bid on a federal contract solicitation, you are signing up for a substantial commitment. Proposals are crucial to a GSA Schedule contractors business development, but they are not an easy win. Drafting a proposal takes time, resources, and a considerable amount of finances, so its only natural that you want to make sure the federal government releases a realistic solicitation and awards contracts fairly. This is what bid protests are for.

The solicitation and awarding processes can be flawed sometimes, and GSA contractors have a right to challenge them by filing a bid protest. Lets dive into bid protests and what contractors need to know about the process.

Government Contract Protest Tips Your Competitors Know About Protesting Federal Government Contract Awards

Bid Protest Attorneys

Government contractors sometimes have to make a decision to engage in protesting federal government contract awards. This level of litigation can be brought before the contracting agency, the Government Accountability Office, or the U.S. Court of Federal Claims.

To help to make the process easier, companies should start the decision process at the time when they initially decide to propose on government contracts for bid.

The first thing that your company must find out when filing a government contract protest is whether a court has jurisdiction to hear the case. Your competitors usually take all of the below information into consideration before filing a bid protest.

Government contract protests at All Levels Have a 70% Failure Rate! WHY..

Contractors fail to convince the court. They fail to adopt the proper legal standards. They fail to focus on the government great latitude and instead simply rely on their own conclusions.

Failure to consider the important legal standards that set the tone of the case. Only 60% of companies have some idea of the legal requirements to win a protest. 30% of those can effective configure the legal and factual basis in the court documents. 40% of those end up with the agency taking serious consideration of taking corrective action.

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Things You Should Know: Pre

Small businesses often search for ways to increase their competitiveness for federal government contracts. A sometimes overlooked method is to try to better define the procurements requirements in a manner that improves a firms chances of being awarded the contract, through a pre-award bid protest.

Here are five things you should know about pre-award protests:

1. What is a pre-award protest?

A pre-award protest is a protestthat challenges the terms of a specific solicitation.

For example, a protester might argue that the solicitation is improperly restricted for a particular socioeconomic designation, or that the technical requirements unfairly tilt the award to one offeror. The protester might also allege that the solicitation violates an applicable law or regulation, or that the agency has otherwise failed to consider an important aspect of the procurement.

2. How does a pre-award protest differ from a post-award protest?

While a pre-award protestchallenges the terms of a solicitation, a post-award protest challengesthe agencys evaluation of proposals.

Here, its important to note that the terminology for these two types of protests is a bit imprecise. That is, its best to think of pre-award protests as instead being pre-bid protests . Post-award protests might instead be thought of as post-evaluation protests.

3. Where can a pre-award protest be filed?

A pre-award protest can be filed withthe agency itself, GAO, or the Court of Federal Claims.

Your Right To Protest And Dispute A Government Decision Regarding A Contract

If the government makes a decision you don’t agree with regarding a government contract, you have alternatives. A contractor can use disputes, protests and other forms of conflict resolution to settle the issue.

If the contracting officer or buying agency makes a decision that you don’t agree with or that you believe is incorrect, what can you do? Government contracting regulations provide contractors with several remedies, all the way from filing a simple protest or dispute to taking the government to court.

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Venues For Protesting A Government Contract

There are three basic venues for protesting a government contract. A company may choose to file a protest:

  • Directly with the procuring agency
  • With the Government Accountability Office
  • With the Court of Federal Claims

Various factors determine which venue is best, and some basic considerations include:

  • The value of the procurement to your company
  • The cost of pursuing a protest in the particular venue
  • Whether the protest would be timely in the venue
  • Whether the protest will involve information that requires a protective order

Gao Most Common Venue For Bid Protests

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Most protests are filed with the GAO. At the GAO, a protest must be filed within 10 days after the basis for the protest is known or should have been known. If a debriefing is requested, and the government is required to provide the debriefing, then the protest may be filed within 10 days after the debriefing.

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Permanent / Temporary Restraining Order Or Tro

The Supreme Court has held that an injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2761 .

Court must consider certain things when making a decision about a request for a Temporary Restraining Order. Even if a government contractor were to succeed upon the merits of its case, the court must also consider three additional criteria before ordering a permanent injunction:

  • whether the plaintiff will suffer irreparable harm if the court withholds injunctive relief
  • whether the balance of hardships to the respective parties favors the grant of injunctive relief and
  • whether it is in the public interest to grant injunctive relief. PGBA, LLC v. United States, 389 F.3d 1219, 1228-29 .
  • At the Court of Federal Claims, government contractors must establish an entitlement to injunctive relief by clear and convincing evidence. Baird Corp. v. United States, 1 Cl. Ct. 662, 664 .

    If you do not show irreparable harm, then the court must deny its request for a permanent injunction. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 cf.Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1350 .

    The court may award attorneys fees and protest costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Crux Computer Corp. v. United States, 24 Cl. Ct. 223 Bailey v. United States, 1 Cl. Ct. 69 .

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