Making the business decision on whether to file procurement protests is not easy. You need to perform a cost vs. benefit analysis prior to making a decision. The last thing you want to do is to file a protest when you have not gathered all your facts. You do not want to give the contracting activity any reason to dismiss your protest. Next, we will discuss how to file an Agency protest.
How To File an Agency Protests?
The first step is to gather all your information regarding the protest. By having it all in one place will make the process a lot easier. That way you will not have to stop and perform research in the middle of putting your protest together.
Costs vs. Benefit Analysis
The second step is to evaluate the facts that you have gathered and make a cost-benefit analysis. Do you have enough information to justify your position with the government? Have you evaluated the costs involved in filing a protest? Will you hire an attorney to help you through the process? Will you require any expert witnesses or consultants to help you with the process? Are there any other costs that may come up with filing a protest?
Remember to review the FAR before you go any further. It may contain addition information on items that you may need to include.
Review the Federal Acquisition Regulation (FAR)
Make sure you review the FAR prior to putting together your case for the protest. The FAR will outline everything that you will need to include in your protest. Make sure to check for agency supplements to the FAR also. These supplements may include other items that you may need to address.
Next, we will talk about stating your case.
State Your Case
Fourth you must present your factors in a concise and logical format so that the contracting agency can review for protest. If you fail to present your facts in this matter the agency may elect to dismiss the protest. And we don’t want that.
What must be included in your protest?
Your protest should include the following information:
Name, Address, Fax and Telephone numbers of the Protester.
The Contract or Solicitation Number.
A detailed statement of the legal and factual grounds for the protest. You must include a description of the resulting prejudice to the protester.
- Include copies of any relevant documents.
- You must request a ruling by the agency.
- Also, include a form of relief.
- Don’t forget to establish yourself as an interested party.
- You must establish that this protest is timely.
- You must address the protest to the contracting officer or other official designated to receive protests.
Your Right to an Independent Review
You have the right to request an independent review of your protest at a level above the contracting officer. All solicitations should advise potential bidders and offerors that this review is available. The official does not have to be within the contracting officer’s supervisory chain. When it is practicable the office should not have been previously involved in the procurement. If there is an agency appellate review of the contracting officer’s decision on the protest, it will not extend GAO’s timeliness requirements. You still must file your protest with GAO within that 10-day timeline.
Now ensure that you file your protest within the allotted time frame. That is what we will cover next.
Filing the Protests Within the Time Frame
Now remember that protests based on alleged improprieties in a solicitation must be file before bid opening or the closing date for receipt of proposals. All other protests must be filed no later than 10 days after the basis of protest is known or should have been know, whichever is earlier. In addition, the agency can determine that a protest was raised from issues significant to their acquisition system may consider the merits of this protest which was not filed within the specified time frames.
What Happens After the Government Receives my Protest?
The Government cannot award the contract once they receive your protest. That is of course unless the contract award if justified. In order to justify the contract award, the Government needs to put into writing its urgent and compelling reasons or its determination that it is in the Government’s best interest to do so. This determination of justification needs to be approved at a level above the contracting officer or by another official depending on the agency procedures.
Who Will Notify Bidders?
The contracting officer will inform those contractors who submitted bids that they might become eligible for a contract award pending the outcome of the protest. In order to avoid the need for re-solicitation, the contracting officer will reach out to the bidders to extend the acceptance time.
Can The Government Award the Contract?
The Government can depend on the urgent need of the supplies or services made a determination that it is in the best interest of the government to award the contract without waiting for the resolution of the protest. Otherwise, the government will suspend all contracting actions until the protest has been resolved.
What About the General Accountability Office?
The agency protest does not extend the time for obtaining a stay at GAO. Agencies may include as part of the agency protest process a voluntary suspension period when the agency protests are denied and the protester files with GAO.
No one wants to see a protest on a contract award including the contracting activity. The contracting activity will do their best to resolve agency protests within 35 days after the protest is filed. That is to the ext3nt permitted by law and regulations. During this time the parties may exchange relevant information.
Agency Has Reached a Decision About Your Protests
Once the agency has reached a decision on the protest, they need to explain their position to the protester. This explanation needs to be logical and will also provide a method of acknowledgement of receipt by the protester.
But wait, what if I want to file my protest with GAO. That is what we will be discussing next week.
In Summary – Protests
As we discussed earlier the decision to file a protest or not is a business decision that only you can make. It is best to perform a cost vs benefit analysis before making the decision.
Emotions tend to run high on government contracts and the last thing you want is to misstate or misrepresent information on your protest. Or file a protest when if you sat down and thought about it for a while you would not have made the same decision.