BID PROTESTS ATTORNEY

A bid protest is a challenge to the award of a government contract for goods or services. In other words, if you believe a government contract was not issued properly, you may be able to initiate a bid protest.

Filing a bid protest is a legal process that should include the involvement of an experienced government contracting attorney. If your company did not hire legal counsel to assist in the preparation of the bid, your business should consider hiring an attorney to assist in the bid protest process.

Government contracting law is a complex area of law and not every attorney will know how to file a bid protest. In general, seek an attorney or law firm with extensive administrative law experience in government contracting.

There are many different reasons a business or contractor would file a bid protest. In many cases, bid protests are filed because the business filing the bid protest did not win the contract. A bid protest can result in the overturning of a contract bid and either a subsequent award to the protest bidder or a non-award with a renewed request for proposals.

A bid protest can also be used to seek information regarding the bidding process for subsequent similar contracts. If a contractor loses a bid, it can file a bid protest as a pretext for determining exactly what the Government is looking for in bid submissions so that they can succeed next time and win the bid. 

Similarly, bid protests may also be filed as part of a larger strategy to pursue future government contracts. For example, assume a solar panels manufacturer has developed new technology it believes is more efficient than currently-used photovoltaics. The manufacturer may apply for an energy procurement contract even though does not meet the specifications but is still a better overall option. The manufacturer’s bid will be rejected, but the subsequent bid protest will result in a closer examination of the manufacturer’s technology. This may not lead to an immediate contract but might encourage the Government to widen the scope of future requests for proposals.

Filing a protest with the federal agency that issued the Request For Proposals (“RFP”) should be the first step in making a bid protest. Doing this on your own can be daunting and ineffective. Working with a reputable bid protest attorney can significantly impact the bid protest outcome. While in many cases a bid protest can bypass the agency and be filed directly with the GAO, there are disadvantages to immediately involving the GAO, such as the higher cost of litigation. Therefore, it is advisable first to raise the issue with the applicable federal agency to determine if quick reconciliation is possible.

Different levels of agency protests exist, and the hierarchy of inter-agency protest appeals will normally depend on the size of the agency’s bureaucracy. However, all bid protests should begin with either an oral conversation with the Contracting Officer (CO) or a written protest letter directed to the CO. Many bid protests can be resolved by raising the issue with the CO, who is supposed to be an impartial representative of the federal government.

If the CO is unable to resolve the protest to the satisfaction of the protest bidder, then additional levels of agency adjudication may occur. Many agencies have policies encouraging alternative dispute resolution such as mediation or arbitration. Other agencies have internal resolution policies including internal administrative courts or appeals to the agency heads. If the agency is unable or unwilling to resolve the protest, the agency will often suggest filing the protest to the GAO.

Regardless of the specific agency procedure for protests, the remedies for filing a protest are generally the same. First, filing a bid protest will cause the current contract to go on hold until the bid protest has been resolved. This needs to be done by a bid protest lawyer to ensure everything is done in a strategic manner. Second, if the protest is found to have merit, it could result in either an awarding of the contract to the protest bidder or at least a new request for proposals. Finally, in certain circumstances, the costs of the bid protest may be covered by the agency.

Under a Department of Veterans Affairs (VA) policy, preference is to be given to veteran-owned contractors bidding for VA contracts. This policy is known as the Vets First Contracting Program. The program ensures legitimately controlled and owned VoSBs and SDVoSBs are able to compete for VA VOSB and SDVOSB set-aside. If the VA hires a contractor that is not run by a veteran to perform work, a bidding company that is veteran-owned will likely have grounds for a bid protest.

Size standards apply to contracts set aside for small businesses. Size standards are based on the business’s amount of annual receipts or the number of employees, and vary based on North American Industry Classification System (NAICS) code. 

In a size bid protest, the protester challenges the award based on the awardee’s size status. The protester must provide sufficient evidence for the protest. If you are the awardee defending the bid protest, you must provide additional information to the SBA verifying your small business status. Incomplete information may result in an adverse inference. 

The GAO has been the primary federal agency responsible for resolving bid protests since the 1920s. While an agency-level protest can be relatively informal, even to the point of raising only oral objections, a GAO filing is governed by specific regulations. A formal GAO bid protest filing must be in writing and may be rebutted by the agency.

Upon the filing of a GAO protest, either the awarding of a contract or the performance of the contract is automatically put on hold until the protest is resolved. This hold can be overridden by the agency under certain circumstances, such as the need for timely performance. For example, defense contractors find it more difficult to get an administrative hold on mission-critical contracts because defense contracts will significantly affect the nation’s interests.

A GAO proceeding culminates in a hearing before an administrative law judge, which is almost like a mini-trial. At the hearing, both sides will present evidence for the judge to consider. This evidence will include documents and witness testimony. Witnesses may be cross-examined like during an actual trial. The GAO’s own procedural rules are trial-like in nature. After considering all of the evidence, the GAO will issue a decision within 100 days. This deadline is to ensure a swift decision on complaints.

However, the GAO’s remedial power is technically non-existent and amounts to merely a strong recommendation. No federal law actually gives the GAO any power or authority to order another federal agency to do anything. The GAO’s power is merely to make a decision about the merit of bid protest and recommend an action. In almost all cases, the contracting agency will follow the recommendation of the GAO. Any contrary ruling from the GAO would serve as persuasive authority in a subsequent lawsuit brought in the U.S. Court of Federal Claims. 

If the bid protestor is still unsatisfied with the result reached by the GAO, the protestor may file its bid protest in federal court. Specifically, government contractor bid protest appeals are heard by the U.S. Court of Federal Claims. Cases brought to the Court of Federal Claims are resolved through the judicial process.

Filing in federal court is a much larger undertaking than making a case at the agency or GAO level. First, federal court litigation is lengthy and expensive. Second, filing in the court of claims will often require the posting of a bond with the court. As the procurement process is time-sensitive, delays can cost the federal government dearly. As a result, protest bidders may need to post a bond with the court, in a sense guaranteeing the outcome of the lawsuit. In the event the court sides with the protest bidder, the amount of the bond will be returned. However, if the protest bidder loses, the amount of the bond is kept by the court to distribute to the contracting agency.

The Court of Federal Claims has the authority to order the contracting agency to do almost anything from reversing the award of a contract and requiring a new request for proposals to awarding the contract to the protest bidder. Unlike the filing of an agency- or GAO-level protest, the performance of the contract is not automatically put on hold. Therefore, the protest bidder must also seek an injunction if it wants to stop the performance of the contract.

If the protest bidder still wishes to appeal an adverse ruling, a decision of the U.S. Court of Federal Claims is appealable to the U.S. Court of Appeals for the Federal Circuit. The U.S. Court of Appeals for the Federal Circuit sits one level of importance below the United States Supreme Court. The U.S. Court of Appeals for the Federal Circuit will review the factual determinations made by the Court of Federal Claims with deference. This means the factual record established by the lower court will usually withstand scrutiny and only matters of law will be re-examined. As a result, any business appealing to the U.S. Court of Appeals for the Federal Circuits should be prepared to make an ironclad legal argument in favor of the bid protest.