Deciding to File a GAO Bid Protest
Filing a GAO Bid Protest
Understand the Risks and Avoid Costly Mistakes
A bid protest can become a concern after all of your hard work and spending valuable resources, you find out that you are not the successful bidder. Do you challenge the award by filing a bid protest to GAO or at the agency level? There certain things you should consider.
- Did the debriefing give you clues as to a viable reason to file the protest?
- How long before bid submission did you learn of the reason for the protest?
- Was your business impacted because the alleged agency error?
These are but a few considerations to think about before you file a bid protest. You may want to consider how your protest will impact any future relationships with the agency. The truth is that although you are exercising your legal rights under the law, agency personnel are human. Regardless of what the rules say, they can in fact consider you a threat because in a protest you are actually appealing their work and decisions. That is a fact.
Does the agency always play fair in bid protest litigation?
The blunt answer is NO. When you file a GAO bid protest, you are creating an adverse situation. The agency now has to get into a defensive posture and justify its decision. The answer to whether the agency plays fair should lean to the negative. As a matter of procedure, the agency counsel will try to find a way to get the case dismissed. The common tactics include:
- Failure to file a timely protest: the attempt will be to state that you knew about the reason earlier and that your protest is untimely.
- The other strategy will be to get GAO to agree that there are no legal grounds for filing the protest: Bid protest regulations have specific reasons for filing a bid protest. Case law and GAO decisions also interpret the rules. Having an attorney on your team can minimize the agency’s success.
What is involved in the bid protest process?
Careful review of the reasons for the protest is the fist and critical stage. For example, if you are claiming that the government did not evaluate your proposal according to the terms of the solicitation, you must point to each section of the RFP and what exactly the agency did incorrectly. This should be stated with particularity in the original bid protest. There must be legally sufficient facts to withstand a dismissal.
After the initial filing, the agency must respond. It will submit an agency report. However, when you decide to represent yourself, you will immediately be at a disadvantage. You have to be admitted to a protective order to actually see what the source selection authority file contains. Agencies love when protestors represent themselves because it automatically gives the agency the upper hand. You should seriously consider retaining a bid protest lawyer to overcome this significant hurdle.
If you are represented by an attorney, he or she will get to see what the agency has included in the source selection file. The attorney cannot discuss the contents of this file with the bidder. However, he or she must carefully review the file to find evidence that supports the allegations in the protest letter. The key to prevailing is to find lack of documentation or reasonableness for the agency’s decision.
Issues related to trade-off decisions can be a viable strategy. Technical evaluations can be flawed and unsubstantiated. In addition, improper consideration for past performance can be critical.
The agency always determines that the successful bidder’s proposal was “most advantageous and best value to the government.” The key is to look for adequate justification, documentation and sufficient of the source selection record. As mentioned earlier, if you represent yourself, you generally cannot see this file and you automatically are at a disadvantage.
How can you defend your rights as the successful bidder?
Bid protest regulations allow you to intervene into litigation. It is important to realize that the protestor is actually challenging the agency’s selection decision. More importantly, the agency does not have a requirement to protect your interests. Obviously, if the protest is denied, then the successful offeror is ‘home free.’
If you have won the award, it is usually a wide decision to have an attorney to intervene and defend your interest. You will then have the opportunity to file a brief or statement that supports the award. Sometimes, this may prompt the agency to legal arguments that the agency did not itself consider. Again, if you represent yourself, then you still are at a disadvantage because only the attorneys generally have permission to be admitted under a protective order.
Avoid costly mistakes in GAO bid protests
Preparation for filing a bid protest to GAO means meeting short deadlines while gathering critical facts to support your allegations. Commonly-made mistakes include:
- Filing a protest with issues that are outside of GAO’s jurisdiction – this can include matters pertaining to contract administration, SBA 8a certification matters and other topics in the bid protest regulations.
- Filing a protest in the wrong forum: for example, small business size protest should go to the contracting officer who then forwards the challenge to the SBA.
- Failure to hire experienced bid protest attorneys: Some contractors mistakenly believe that their regular corporate attorney has the experience to represent them in a bid protest. Government contract law is very unique and heavily regulated. If you plan on filing a protest, never assume that your business attorney understands the rules.
For more information or representation with a GAO protest, contact Watson & Associates, LLC at 1-866-601- 5518 for a free initial consultation.