Today we continue our topic regarding government procurement protests. Remember the government’s goal is to ensure effective and efficient expenditure of public funds. They also want fair and expeditious resolution of protests to a solicitation or award on government contracts. As a result of these goals the government wants to reduce the number of cases that go outside the agency. Therefore, the government regulation was written to direct that prior to submission of a protest the contracting agency, and all parties use their best efforts to resolve the concerns with the agency contracting officers through open and frank discussions.
What happens when you cannot resolve the problems at this level? Well, you the contractor, can submit a protest to the agency. As a result of the protest, the agency must provide for inexpensive, informal, procedurally simple, and expeditious resolution of protest and to use, where appropriate, alternative dispute resolution techniques, third-party neutrals, or even another agency’s personnel.
Can you protest a solicitation prior to contract award? Why yes you can. In fact, that is the next thing we will talk about. Let’s get to it.
Protest Prior To Contract Award
If the government receives the protest prior to the award of the contract the agency will not award the contract until a decision on the protest is determined. However, this depends on the agency’s need for the items. If this item is urgently needed or the delivery or performance will be overly delayed, or the prompt award with otherwise be in the best interest of the government. Yes, I did use those five little words again. “The Best Interest of the Government”. This does let the government off the hook but to be honest the government rarely uses this option.
What happens when the protest is received before the contract is awarded? That is what we will be discussing next.
Protest After to Contract Award
When a protest is received within the 10 days after contract award, performance on the contract will be suspended pending the decision on the protest. If a protest is received 10 days after award of the contract, the individual agency procedures will determine how the protest will be handled. The agency may suspend the contract performance or terminate the contract unless it is likely that the award will be invalidated, and the delay will not be detrimental to the government’s interest.
The contracting officer must notify all other eligible offerors of the protest especially when the award will be suspended pending resolution of the protest. Although the FAR encourages contractors wishing to protest to seek resolution within the contracting agency before filing a protest with the General Accountability Office (GAO), the regulations do allow the party to file with GAO for resolution.
A Word of Caution
Filing a protest with GAO and bypassing the contracting officer and the buying agency will be the end of the line for your protest. The GAO’s decision is final, and you cannot appeal it anywhere!!!
By keeping your avenues of protest and appeal open by protesting first to the contracting officer or contracting agency has other advantages. The contractor protesting can often gain additional time to gather more information that will assist the contractor later if they elect to protest to another forum.
Protest to GAO
Not all protests can be sent to GAO. The following are examples of protests that cannot be sent to GAO:
- Contract Administration.
The administration of an existing contract is within the discretion of the contracting agency. Disputes between the contractor and the agency are resolved pursuant to the dispute’s clause of the contract and the Contract Disputes Act of 1978. See 41 U.S.C. 601-613. That is why I have stressed the importance of reading your contract. Also, GAO cannot make decisions regarding 8(a) awards to minority and socially and economically disadvantaged businesses unless there is a possibility of bad faith on the part of the government or violation of the regulations.
- Small Business Administrations (SBA) Issues.
The SBA will handle all challenges of small business size standards, standard industrial classification, and issues relating to the 8(a) awards to minority and socially and economically disadvantaged businesses. Of course, SBA will not handle any protest showing possible bad faith on the part of the government officials or violation of the regulations.
- Affirmative Determination of Responsibility by the Contracting Officer.
GAO Will NOT Review
A determination that a bidder is capable of performing a contract will not be reviewed unless there is a showing of possible bad faith on the part of the government officials or that definitive responsibility criteria in the solicitation was not met.
- Procurement Integrity.
GAO will not review a protest for a procurement integrity violation unless the interested party has reported the information it believed constituted evidence of the offense to the contracting agency responsible for the procurement within 14 days after it first discovered the possible violation.
- Protest filed outside the required time limits.
- Protests that lack a detailed statement of the legal and factual grounds of protest or that fail to clearly state legally enough grounds of protest as required under the regulations.
- Procurements by agencies not under the jurisdiction of the Federal Property and Administration Services Act.
- Subcontract Protests.
GAO will not consider subcontractor issues unless the agency has agreed in writing and the award is made by or for the government, such as when a contractor acts as a purchasing agent for the government.
Am I Required to Hire an Attorney?
No, you are not required to hire an attorney. However, many contractors retain an attorney
due to the benefits that they bring to the table. Attorneys are familiar with GAO’s bid protest
process and with procurement statues and regulations. The regulations state that if you win your
protest, the contracting agency will pay your attorney’s fees but there is a
cap (currently $150 per hour). If the
fees exceed that amount, then you will have to show special circumstances to
justify the higher amount. However, this
is not always the case.
Remember that you have 10 working days to file a protest with GAO after learning of the agency’s decision. The GAO can then take up to 60 days to respond. If there is an adverse decision by GAO the contractor has the option to file a Notice of Appeal, which can add another 90 days, or file a suit in the Court of Federal Claims. The Court of Federal Claims can take up to another 12 months. Appeals by either party to the Court of Appeals for the Federal Circuit can take another 60 to 120 days. All in all, it may take up to four years to get a hearing on claims over $50,000 although trial stage has been reached within two years in the Court of Federal Claims.
To Protest or Not to Protest
This decision is ultimately up to you. Make sure that you think this decision through. In my career I have seen companies protest every contract that they lost. This is not a good idea. As this can create an adversarial relationship that can work against you on current and future contracts. If you must protest, you must have a “real” reason and you must have evidence to support your claim.
If you decide to protest it is best to get advice before you do anything. You can consult with your local PTAC, or better yet your attorney. Start by first educating yourself on the requirements and procedures and your rights under FAR Part 33.1. FAR 33.1 covers protests. Here is a link to the FAR.
Chances of Winning a Protest?
So, what are your chances of winning your protest? Well it changes every year, but it is common for the win ratio to be in around 40%. Generally, the range is 43% to 47%. For example, in 2018 the GAO had 2,474 cases filed. The effective rate was 44%. This means that 44% of the cases saw some sort of relief from the government. Remember the stronger your protest is, the greater the advantaged with the buyer and the agency.
Make sure that you perform a cost-benefit analysis before you file your protest. The opportunity to claim a lucrative contract award is generally enough to justify the expenditure of time and resources. However, when the government ignores its own procurement errors and forces a contractor through unnecessary paces, it is good to know that there is a way to get back those costs.
Do I need to Hire an Attorney?
As I have discussed in prior episodes, it is always advisable to have a team of advisors available to assist you with your business decisions. Filing a protest is one of those times where you will want to seek the advice of your attorney. The sooner you reach out to them the better. Remember that contract law is complex, and you should have someone on your team to guide you through the legal process. Yes, attorneys are expensive. However, they could be the difference from winning your protest or not. As always, it is up to you to make the decision on whether to seek an attorney’s advice in this matter. You can file a protest without an attorney. That is a business decision that you must make. I can only tell you what I would do if I was in your shoes.
In today’s blog we covered a variety of protest topics such as protests prior to contract award, protests after contract award, GAO protests (which we will cover in more detail later), do I need an attorney, and percentage of wins on protests.
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