Even the simplest bid protest isn’t exactly straightforward – competing venues, complicated remedies, volumes of strict regulations, procedures, and guidelines. It’s enough to overwhelm even the most sophisticated government contractor. Making the situation even more difficult, many procurement contracts involve classified information – information, the “unauthorized disclosure of which could reasonably be expected to cause identifiable or describable damage to national security.” What should a prospective protester do when procurement information cannot be publicly disseminated because it is classified? Consider the following:
What’s the appropriate venue?
As with the conventional bid protest, a protester may choose to present its challenge with the Government Accountability Office (“GAO”), the U.S. Court of Federal Claims (“COFC”), or at the Agency level. But which venue is best? All three venues are equipped to process classified information, but the pool of prospective judges at COFC or decision officers at GAO that are properly cleared may be limited, causing the potential for delay. The Agency – as the offeror and source of the procurement – will always have cleared personnel equipped to adjudicate a potential protest. Thus, starting at the Agency level is usually best practice. Often, in order to proceed to GAO, the protester must file its Complaint with the Agency but mark it as a GAO protest. Then the protester must notify GAO that the Complaint was lodged and await instructions. Remember, if the protester choses GOA or COFC as its venue, the protester must provide notice and follow all applicable procedures. Never file classified information through an electronic filing system or otherwise transmit classified information through unauthorized means.
What are my remedies?
Generally, the same remedies available for traditional bid protests are also available for protests involving classified procurements: cancellation of the contract and re-solicitation, amendment of RFPs, further discussions, etc. The definition of classified information necessarily implicates national security, so remember that your remedies may be limited according to government requirements connected with its ability to counter rising national-security threats and mitigate risks.
What is the process?
The process varies according to the venue and always depends on the language and requirements of the original solicitation, as well as existing Agency guidelines. For instance, within the Intelligence Community, guidelines and requirements might not allow for contact outside the specific Agency (or even mentioning the Agency by name), organization, or taskforce. Moreover, the solicitation will always reference the level of classification – whether Top Secret (including caveats and control systems such as SCI, SAP, GAMMA, HCS, NOFORN, and others), Secret, or Confidential.
At GAO, the process largely involves the Agency, so it is best to start there. Whereas, at COFC, there are internal processes for handling of classified information, and protests can be initiated through providing unclassified notice to the Department of Justice and the filing of an unclassified Complaint. COFC then works with its security officers that coordinate access to relevant classified information among the parties. For more information on COFC protests involving classified information, please review the U.S. Court of Federal Claims Guidelines for Cases Involving Classified Information, which can be accessed online at the following URL:
Some tips and suggestions
When considering whether to file a protest involving a classified procurement, do not delay in seeking outside counsel. Finding cleared lawyers, judges, and decision officers takes time, and the earlier you start the process, the better. Never transmit classified information through unauthorized means – an online electronic filing service is never appropriate for classified information (and neither is anywhere else on the internet). Always follow Agency guidelines and solicitation requirements, and remember to give proper notice and await instructions, rather than proceed in error and risk criminal penalties for the unauthorized distribution of classified information. When in doubt, reference the following resources, all of which can be publicly-accessed online:
- Keeping Government Secrets: A Pocket Guide on the State-Secrets Privilege, the Classified Information Procedures Act, and Classified Information Security Officers.
- Security Program Operating Manual, U.S. Department of Justice.
- S. Court of Federal Claims Guidelines for Cases Involving Classified Information.
Consider contacting legal counsel at Whitcomb, Selinsky, P.C. for assistance with your bid protest. Our attorneys have been successful in helping a number of clients successfully handle these kinds of issues. Call our Denver office at (303) 534-1958 or complete our online form today.
 See Executive Order 13526 of December 29, 2009.