[Bid Protest Video Transcript]
My name is Joe Whitcomb and I am coming to you this morning from Denver, Colorado, bringing you another addition of vetbizlawyer video and podcast. I'm the owner and founder of Whitcomb Selinsky PC and today I'm going to discuss a topic that is typically top of mind for many government contractors. When and where should my company file a bid protest?
But, let’s start with, “what is a bid protest?”
A bid protest is something a government contractor can file at varying stages of the procurement process, when the contractor disagrees with something the procuring agency has done. A company can file a pre-award bid protest at the instance in which it discovers a defect in the solicitation itself. Another type of protest is a post-award bid protest. A company would file this when it believes that the procurement process was either carried out incorrectly or resulted in an unfair outcome. The protestor might believe that the agency should have awarded it the contract based on the evaluation criteria in the solicitation. Or, you as the contractor may learn that the contracting officer did not apply the evaluation criteria correctly, meaning the criteria was applied in a way that was contrary to the solicitation documents. Today we'll be discussing a number of different scenarios.
[Types of Bid Protest]
This first type of bid protests is one that the protestor actually files with the competing agency. This is called an agency level a bid protest.
[GAO Bid Protest]
The second type of protest a company can file is called a GAO bid protest. That is a protest that a company files at the Government Accountability Office. The GAO has its own set of rules covered under 4 CFR 4.21.
[Protest at the Court of Federal Claims]
The third type of bid protest is filed at the Court of Federal Claims, which is a court in Washington DC. It's a court of unique jurisdiction, which means it is the only court in the country that is allowed to hear cases against the United States that originate in contract. These cannot be filed in any other US District Court. So, again, if you to have a rule violation and that rule violation has negatively impacted your company, you can file the protest at the Court of Federal Claims.
Now let’s talk about what is required when filing a bid protest.
The requirements for filing a bid protest are two. The procuring agency must have violated a statute or regulation; and that violation must have hurt or “prejudiced” your company in some way. More simply, the contracting officer or the contracting staff must have done something that was in violation of the Federal Acquisition Regulation, or a federal statute and your company has to have been negatively impacted. So, just finding a rule violation isn't enough. You must cite a rule violation and must demonstrate to either the GAO, the Contracting Officer or, Court of Federal Claims, that there was a violation which negatively impacted your company. The courts and agencies refer to this as “prejudice.”
[What time requirements do we face in bid protests?]
At the GAO and the agency level, timing of bid protests is governed by 4 CFR 21.2. That CFR states that your company has ten days from when you knew or should have known about the problems with the award. If you get a notice of award and after reviewing it determine that your company should have been the awardee, then you have ten calendar days from the date of award to file a GAO or Agency level protest. There is an exception to that rule if you request a debriefing and a debriefing is required. As a side note, debriefings are only required under contracts that are competed under FAR part 15. This FAR provision covers negotiated procurements. If the contract is competed under FAR part 12, 13 or 14, a debriefing is not required, but can still be requested. Requesting a receiving a debriefing under those FAR provisions, will not result in an extension of the filing deadline.
However, if a debriefing is required and requested, then you have 10 days from when you receive the debriefing to file a post-award bid protest.
[Staying the Procurement]
Customarily, if your company files a bid protest at the GAO within that 10-day deadline, an automatic stay takes effect. A stay in the procurement means that the agency is not allowed to move forward with the award for at least as long as the GAO is adjudicating the protest. This typically takes 100 days from the date of protest filing.
[Timing the Pre-Award Protest]
If your company’s protest is about a perceived defect in the language of the solicitation, you will file a pre-award bid protest, which is sometimes referred to as a defective solicitation protest. For these protests, you have up until the date and time that offers are due to file at either the GAO or the Agency. So, if for example there was a procurement that came out on January 1, 2020 and proposals were due by January 31, 2020, at 4PM EST, then you would need to make sure that your protest is filed at the GAO prior to that 4:00 p.m. deadline for submission. If you file a protest at the agency level, the agency has 30 days to respond to your protest and issue a decision. That decision or any other action negative to your protest, starts a new 10-day clock if you want to go to the GAO with your protest.
[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 company’s bid or proposal was not awarded. This is especially true if the agency doesn’t give you a thorough debriefing under FAR part 15. The Agency level or GAO protest will at least inform you of the government’s official reason for not awarding your company the contract.
[GAO Level Protest]
Beyond the agency level protest, you have the GAO level protest or the Government Accountability Level protest. Those protests are filed at the GAO. The GAO stood up a website called EPDS and this where protests must be filed no more than 10 days after the notice of award or notice of intent to award.
Remember, this all has to do with the solicitation itself. We will create another video dealing with size standard or status protests which are filed at the Small Business Administration. For the purpose of either a defective solicitation or a post award bid protest based on technical criteria, the Agency, Government Accountability Office, or Court of Federal Claims is where these protests are filed.
You can also file protest relative to the Procurement Integrity Act at the GAO, but those are far rarer protests than the protests for technical reason. So, if you if the contracting officer for example found that your proposal was not technically acceptable that would be a reason for you to file that protest at the Agency, the GAO or the Court of Federal Claims. Athe Agency and GAO you have 10 days from the date of notice of award. At the COFC, you have the amount of time the court finds “reasonable.”
[Stay of Award]
As we discussed earlier, if you wish to affect a stay of the procurement that 10-day rule still applies unless a debriefing is required and you request the debriefing. Then it is the later of ten days from the date of announcement of award or five days after you have gotten a formal debriefing.
[DOD Deviation on Debriefings]
There is a separate deviation for the Department of Defense on debriefings on procurements that are in excess of ten million dollars. We will create additional content on that enhanced DOD debriefing.
At the GAO level bit protest, you or your attorney will file the protest at the EPDS. You can simply Google GAO EPDS website and it will pop right up or you can follow the link in the text version of this video blog. You have to create a user profile and password and file the protest there. Have your solicitation number handy as well as any documents you want to upload. Full disclosure, you can file this protest this pro se, which means without the benefit of an attorney. The difficulty in doing that is the government will redact most of the relevant documents and you will not see much of the administrative record without assistance of an attorney and the benefit of a protective order.
Once you have filed your protest, the government is required to get an administrative record filed within 30 days. The agency will regularly engage in motions practice at this stage and often will file a motion to dismiss based on a merit of your claim or their perceived lack thereof. The government might also issue a corrective action which can regularly be code for, “we’re going to take another look at how we did things and we may or may not repeat the process over again.”
The GAO regularly grants the government’s motions to dismiss based on corrective action. It is not normally a worthwhile effort to protest the corrective action, because GAO will typically grant them regardless. If the government does not motion for dismissal or issue a corrective action, then they must file administrative record and agency report within 30 days of the date that you or your attorney file your protest.
[Comments to the Agency Report]
After the government issues its Agency Report and Administrative Record, a new starting gun sounds for you to submit your comments to the agency report within 10 days. A failure to submit those comments will result in your protest being dismissed. You will not likely get additional time beyond those 10 days to file your comments, unless there are extenuating circumstances. Sometimes holidays or an illness will be enough to seek an extension, but you will need to request leave for an extension well in advance of your deadline. Also, you will need to file any additional grounds for protest that you might want to raise within those original ten days.
[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.
[Straight to the Court of Federal Claims]
The third option for filing a bid protest is to take it to the Court of Federal Claims. A protest could start as an agency level protest, go through the GAO and end up lastly at the Court of Federal claims. Or your company or your attorney can go as we sometimes have, straight to the Court of Federal Claims, often referred to as COFC. The Court of Federal Claims would then have jurisdiction under that court’s bid protest jurisdiction. Importantly, protests that are filed at the Court of Federal Claims are not under the stringent 10-day deadline that apply at the GAO.
[Timeliness at COFC]
The timeliness requirement at the Court of Federal Claims is simply one of reasonableness. You cannot take an unreasonable amount of time to file your bid protest or it will be dismissed based on timeliness. The federal court has applied this standard differently in different cases. There is some case law that says 30, 60, 90 days is not unreasonable when it comes to a disappointed offeror filing a bid protest in a post award setting.
[Blue & Gold]
However, there is a Court of Appeals for the Federal Circuit case referred to as Blue & Gold that says that if you want to file a complaint about a defect in the solicitation including ambiguity, the contractor cannot wait until after the award of the contract to file that complaint. The Court instructed in Blue & Gold that contractors cannot “lie in wait,” to see if the ambiguity serves them and then file the protest if they are not the winners. Instead contractors must file that complaint when it learns about the defect or at least in advance of the responses to the RFP being due.
[The Value of COFC]
The value of filing a case at the Court of Federal Claims is that you're going to have the chance to argue your case in a federal court. The judges in this court are appointed by the President and confirmed by the Senate. A version of the Federal Rules of Civil Procedure applies in these cases. All bid protests are decided on motions, normally without witness testimony or the presentation of evidence outside of the administrative record. There's never a trial or a jury. Regularly oral argument take place in front of a Court of Federal Claims judge. There is one courthouse. It is in Washington DC. The briefing is done in an accelerated fashion.
[No Stay of the Procurement]
One potential negative about filing at COFC versus the GAO is that if you file at COFC, you don’t get the automatic stay of the procurement you get if you timely file at the GAO. At the GAO the agency has to wait until the GAO issues a decision or they have to file a written explanation as to why they've overridden the stay. If the government elects to override the GAO stay the protestor can file a complaint at the Court of Federal Claims to enforce the stay. But if you go to Court of Federal Claims that there is no automatic stay in place.
[TRO or Preliminary Injunction]
Instead if you want to stop the progress of the procurement or keep the procurement from being awarded and performed then you must file either a TRO, which is a temporary restraining order, or a motion for preliminary injunction. If the court grants either of these motions, then the government will not be allowed to go forward with the procurement until the protest is completely resolved and adjudicated.
[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 government’s 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.
So, those are the types of bid protest and the timing on those bid protest. Normally, the timing at the Court of federal claims from complaint to adjudication is about 120 days. This court is intentionally very quick, because in many instances the government procurement process is either halted completely or at least is unclear and so the Court of Federal Claims tries to get these cases adjudicated quickly.
That is the conclusion of our overview of bid protests. If you have any questions about bid protests, of course you know how to reach us. You can reach us at the number on your screen. There is even a link on this page to schedule an appointment with a member of our legal team. We are happy to counsel you on whether a bid protest at the Court of Federal Claims, GAO or agency level is advisable. So again, I thank you for your time hope you found the video useful. Good-bye.