What is a Bid Protest?
First, it’s important to understand what a bid protest is. A bid protest is a challenge to the award of a government contract. It can be filed by an interested party, such as a competitor, who believes that the award of the contract was improper or that their own bid was unfairly rejected. The details can all be found in FAR Part 533 titled “Protests, Disputes, and Appeals.”
Bid protests can be a challenging and stressful experience for government contractors. Understanding the types, reasons, and process of bid protests can help you prepare and respond effectively if your government contract is challenged by a competitor.
There are two main types of bid protests: pre-award and post-award.
- Pre-award protests are filed before the proposal due date and challenge the terms and conditions of a solicitation. They may argue that the solicitation is ambiguous, unrealistic, or unfairly favors a particular company or solution.
- Post-award protests, on the other hand, are filed after the award decision and challenge the government agency’s evaluation of technical, price, or past performance factors.
There are also three types of Bid Protests relating to the Agency that is approached:
- Contracting Officer Protest: The contractor may protest the decision directly to the contracting officer
- Agency Protest: The contractor may bypass the contracting officer and make a protest direct to the APO, who will then issue a decision following the process outlined above
- Government Accountability Office (GAO) Protest: The contractor may file a bid protest with GAO. More details are available on GAO’s website.
How to Handle a Bid Protest
There are several reasons why a contractor may file a bid protest, including flawed solicitations, unreasonable cost or price evaluations, and unreasonable past performance evaluations. The bid protest process involves submitting a written request to the Government Accountability Office (GAO), outlining the legal and factual grounds for the protest and requesting a ruling from the Comptroller General. Interested parties, defined as potential bidders for the contract or bidders who did not receive the contract award, have 10 days from when they know or should know the basis of the protest to file a post-award protest.
If you are the recipient of a government contract that has been protested by a competitor, there are a few steps you can take:
- Review the protest and the basis for the challenge. It’s important to understand the specific grounds for the protest and how it relates to your contract.
- Consult with legal counsel. A bid protest can be complex and involve various legal issues. It’s a good idea to seek the advice of an experienced attorney who can help you navigate the process.
- Gather supporting documentation. If the protest challenges the award of the contract to you, it may be necessary to provide evidence to support your bid. This could include documentation such as price lists, technical proposals, and other relevant materials.
- Respond to the protest. You will typically have an opportunity to respond to the protest and provide any additional information or documentation that may be relevant. It’s important to do this in a timely and thorough manner.
- Participate in any hearings or meetings. Depending on the specific circumstances of the protest, you may need to participate in hearings or meetings with the contracting agency or other parties involved in the process.
If a bid protest is filed, the agency may be required to suspend contract performance until the situation is resolved. The GAO typically provides a decision within 100 days. If the protest is not denied or sustained, the agency may take corrective action, such as modifying the solicitation, re-evaluating proposals, or recovering protest costs.
It’s also worth noting that bid protests can be costly and time-consuming, so it’s important to carefully consider your options and seek legal advice as needed. By understanding the bid protest process and preparing in advance, you can minimize the impact on your business and increase your chances of success.
What if You Want to Protest a Bid?
After putting in the effort of crafting a government proposal, you definitely want to ensure that the decision-making process was fair. While government agencies have experts involved in the process, they are still human and mistakes can occur. Bid protests allow contractors to hold the government accountable and address any issues.
There are three main reasons a contractor may file a bid protest:
- a flawed solicitation
- an unreasonable cost or price evaluation, or
- an unreasonable past performance evaluation.
The bid protest process involves submitting a written request to the Government Accountability Office (GAO), outlining the legal and factual grounds for the protest and requesting a ruling from the Comptroller General. Only interested parties, defined as potential bidders for the contract or bidders who did not receive the contract award, can take action through a bid protest.
Pre-award protests must be filed before the initial proposal due date, while post-award protests must be filed within 10 days of when the protestor knows or should know the basis of the protest. When a protest is filed, the agency may be required to suspend contract performance until the situation is resolved. If the protest is filed with the GAO, a decision can typically be expected within 100 days. If the protest is not denied or sustained, contractors may be able to take corrective action, such as modifying the solicitation or re-evaluating proposals.