Today we are going to talk about protests as far as it is concerned with government contracting.
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Define Protest vs Dispute
Alright, let’s get into today’s topic. What if you do not agree with the decision that the buying agency or contracting officer made? Or what if you believe that their decision is not correct? The Federal Acquisition Regulation (FAR) does provide contractors with several options. The first option is filing a protest. The second option is a dispute. The third option is taking the government to court.
First let’s define protests terminology. Under government contract law, you have the right to “protest” and also a right to “dispute”. While these terms appear to be similar and are often used interchangeably to everyday language, the government regulations treat them differently. For the actual definition that the government uses for Protest please see FAR 33.1.
These rules generally give you a right to “protest” a defective bid or the award of a contract to another bidder. These rules also give you the right to “dispute” an issue or disagreement with the contracting officer that arises after you won, and the contract has been awarded. In addition, you may have other options.
Before we go any further you need to know the three federal bid protest levels. Contractors can file a protest at any level.
Three Federal Bid Protests Levels
In case you did not know there are three bid protest levels. I have listed them from the highest level to the lowest level. They are:
- Judicial action brought at the U.S. Court of Federal Claims (COFC).
- Protest filed with the Government Accountability Office (GAO).
- Agency-level protest filed with the agency conduction the procurement.
Remember that you have only ten days to file a protest after the basis for the protest is known or should have been known. If you fail to file a protest within this timeframe you will not win the protest. The only option available to you is to go to a higher level of Protest which is usually with the US Court of Federal Claims.
Protesting a Contract Award
Not just anyone can file a protest. In order to file a protest, you must be an “interested party”. This means an actual or prospective bidder whose direct economic interest would be affected by the award of the contract or by the failure to award a contract. When challenging the government’s evaluation of proposals and the award of contract, this means a bidder that would potentially be in line for award if the protest was sustained.
Most contractors that file a protest do so under one or more of the following situations.
- Challenge the acceptance or rejection of a bid or proposal.
- Contractor challenges the award or proposed award of a contract.
- Contractor states the solicitation or bids were defective as a protest basis.
Up next, we will discuss some examples of defective solicitations or bids.
Most of the protest filed by contractors challenge the acceptance or rejection of a bid or proposal, and the award or proposed award of a contract. However, defective solicitations or bids may also be used as a basis for a protest. A contractor can protest bids based on the following:
- Allegedly restrictive specifications.
- Allegedly omission of a required provision.
- Contractor alleged questionable or indefinite evaluation factors.
- A terminated contract may be protested if the protest alleges that the termination was based on improprieties in the award of the contract.
When Can I file a Protest?
What does all this mean? Well it means that you the contractor, has the right to protest a bid or an award before and after the award of a contract. You have the right to protest a bid, you can protest an award and you can protest a termination of your contract.
It is important that you respond to a negative performance assessment when it first arises. The time to manage performance problems is during the performance, not during the next proposal. It is extremely important that you be on time with your protest. Remember there are no exceptions for missed deadlines.
Sometimes we need examples of reasons to protest. That is what we will be discussing next.
Common Protests Grounds
I have found that many of my clients prefer examples when discussing protests. Below are common protest grounds for defective bids?
- The bid does not contain enough detail. You cannot determine what the government wants.
- The solicitation is too detailed. The Statement of Work (SOW) contains 50 pages.
- The solicitation to too restrictive. For example, it uses standards or specifications that are not needed.
- You need more time to respond. The government’s timeframe is too restricting.
- The statements in the bid are vague. You cannot determine what the government wants.
- The Government is using many brand names or equal issues.
- Small business problems
- Wrong Size Standard
- HUBZone problems
- “Failure” to set aside for small business
There is a lot to learn regarding protests in government contracting. We are going to break this up into two separate articles. Next week we will pick up where we left off continue our discussions on protests. So, stay tuned for your next vlog.
For more articles on government contracting please see our blog.