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Bid Protest FundamentalsWHAT is a Bid Protest?– a challenge to the award or proposed awardof a contract for procurement of goods &services OR– a challenge to the terms of a solicitation forsuch a contract* This means agency procurement actions can bechallenged before & after award
Bid Protest FundamentalsWHERE to Protest– Procuring Agency (usually the CO)– Government Accountability Office– U.S. Court of Federal Claims– SBA (protests of small business size status; file with CO first)
Bid Protest FundamentalsWHEN to Protest– Pre-Award protests filed at agency or GAO must befiled before next offers are due– Post-Award• If no debriefing, 10 days after notice• Debriefing (must request w/in 3 days of notice)• Protest – five days after “required debriefing” for automaticstay / suspension– Competitive Range– Other grounds must be filed w/in 10 days of notice– Timelines are strictly enforced!
Bid Protest FundamentalsWHEN to Protest (cont’d)–U.S. Court of Federal Claims• Pre-Award similar to GAO• Post-Award: No statute of limitations, but court will assesswhether Plaintiff waited too long to file after award
Bid Protest FundamentalsTypical Grounds of Protest– Pre-Award• Specs/requirements overly restrictive of competition• Specs/requirements are ambiguous• Bundling• Other solicitation problems
Bid Protest FundamentalsTypical Grounds of Protest– Post-Award• Unstated evaluation criteria• Evaluation did not follow RFP• Lack of meaningful discussions• COI• Violations of law or regulation• Unequal treatment
Bid Protest FundamentalsBusiness Considerations– Bid protests should be part of your overall capturestrategy• Use pre-award protests to shape the procurement when appropriate• Remember, if don’t protest a term or condition of the RFP before submissionof proposals, you have agreed to play by the rules as published (waiver)• Whether to file a post-award protest – what is the realistic likelihood ofsuccess?• Costs (agency vs. GAO vs. COFC)
Bid Protest FundamentalsBusiness Considerations – cont’d.– Protesting w/o an attorney is (almost) never a good idea– Defending an award you received– Winning a protest does not necessarily mean you win thecontract. Make sure your attorney is giving you a realisticassessment– Relationship with your customer – real concern but oftenoverstated
Bid Protest FundamentalsPossible Outcomes– You win on the merits– Agency corrective action– Protest denied / dismissed– Things to Consider:• Directed awards are rare. If you win, GAO or COFC will usually tellthe agency to fix the problems identified by the protest.• In some instances you may qualify for reimbursement• Winning on the merits – approx 20% of the time or less• Corrective Action – more & more frequent
Bid Protest FundamentalsConclusions– Make bid protests part of your overall strategy– Decision to protest should support your business objectives(Legal vs. Business considerations)– Winning a protest & winning a contract are 2 different things.* But sometimes you have to do one in order to do the other.– Timeliness matters. A lot. Late protests get dismissed.– Get your attorney involved early & make sure s/he is giving you arealistic assessment of the situation.
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