Federal government contracting differs from commercial contracting in a number of ways. One of the most significant ways is that a federal government contract award may be challenged by a formal bid protest. Bid protests come in three basic varieties: (1) an agency protest considered directly by the agency making the contract award; (2) a bid protest filed at the Government Accountability Office (GAO); and (3) protest litigation filed with the United States Court of Federal Claims (COFC). The bid protest lawyers at McMahon, Welch, and Learned, PLLC have significant experience representing clients in each type of bid protest. Here are some of the most frequently asked questions that we have heard from our clients about bid protests:

How and where can I file a bid protest?

Any competing federal government contractor can file a bid protest. Protests can be filed either before proposals are submitted or after a contract award is made. In a pre-award protest, a protester can challenge the terms of an on-going solicitation up until the time proposals are due. In a post-award protest, a disappointed bidder can challenge the award of the contract or challenge being eliminated from the competitive range.

While the agency bid protest and litigation at the U.S. Court of Federal Claims are options, most bid protests are filed at GAO. In fiscal year 2019, protesters filed more than 2,200 new protests at GAO.

Based on our experience, agency-level protests are not as successful as GAO protests or protests filed with the COFC. We usually discourage filing agency-level protests. Some federal agencies have elaborate procedures for the fair consideration of agency-level protests. However, the ability of a protester to participate in an agency-level protest is highly restricted and neither you nor your attorney can review evaluation documents or respond to the contracting officer’s defense of the award. If you are unsuccessful at the agency-level, you can then take the same protest to GAO or COFC for a new review of your protest grounds. But filing at the agency level first will limit your remedies elsewhere.

If you file a protest directly with the GAO, you can get an independent review and, if you meet all the timing requirements, you can usually get the new award stopped while GAO considers your protest.

Finally, you can file your protest at the U.S. Court of Federal Claims. You can start your protest at the COFC, or you can take your agency-level protest or GAO protest to the COFC, even after the protest has been decided. In addition, there are basically no timing requirements at the COFC as long as you file within a reasonable time after you learn the basis of your protest.

Is it true that I have only ten days to file a bid protest?

The answer depends on the type of bid protest that you are contemplating. If you are challenging the terms of the solicitation as unfair or flawed in some way, you can file your pre-award bid protest any time prior to receipt of proposals. After that deadline has passed, you lose your right to complain.

If you are challenging a final award to your competitor in a post-award bid protest, a 10-day clock a good rule of thumb, but the timing can be complicated. To maximize the benefits of your bid protest, it needs to be filed in time to stop the new contract from beginning or, if the new contract has begun, then stop it from continuing. In order to stop the new contract from beginning or continuing, generally you need to file your protest within ten days of when the new contract was actually awarded (not just when you first heard about it). The date of actual award is not always announced, so sometimes you have to assume that the date of announcement of the award is when the contract is actually awarded. But that is not always correct.

If the competition was a negotiated procurement under FAR Part 15 (in other words, not involving a GSA schedule award under FAR 8.4 or a task order award under an IDIQ contract), then you may have extra time to stop the new contract. If the competition was a negotiated procurement and you are entitled to a mandatory debriefing, then you can file your protest within ten days of actual award or five days after the close of your mandatory debriefing, whichever is later.

Whether or not you stop the new award from continuing, you may still be timely to file a bid protest if you meet the specific timing requirements for protests filed at the GAO. GAO rules require a post-award protest to be filed within ten days of when you know or should have known of the basis of your protest or within ten days after the close of a mandatory debriefing, whichever is later. Time limits at GAO are strictly enforced.

Regardless of the circumstances or the type of protest you are contemplating, it to your benefit to contact your attorney as soon as possible.

Do I need an attorney to file a protest?

Technically an attorney is not required to file a bid protest at GAO or directly with the agency. However, an attorney will be required in order to file a bid protest at the COFC.

That said, consulting with an attorney is recommended in every case. It is especially important to retain an attorney for a bid protest being filed at GAO or the COFC. If you are challenging your own evaluation or the evaluation of the awardee’s proposal, an attorney can review the source selection documents and, if relevant, the awardee’s proposal to determine if the agency made a complete and fair evaluation. The attorney will not be able to share the details of the evaluation but can bring any relevant evaluation issues to the attention of GAO or the COFC.

Will I be able to see the awardee’s proposal?

Unfortunately, no, you will not be able to review the awardee’s proposal by filing any type of bid protest. If the grounds for a bid protest filed at GAO or the COFC relate to the awardee’s proposal, your attorney can review the proposal as part of the written record that GAO or the COFC uses to decide the protest. However, both GAO and the COFC employ the use of protective orders that impose strict confidentiality rules against the disclosure of such procurement sensitive information to the parties. So, your attorney cannot provide you details about proposals or any other type of procurement sensitive information.

How long does it take to resolve a bid protest?

The timing will depend on the type of protest you decide to pursue. Federal regulations encourage resolution of any agency-level protest within 35 days, but there is no legal requirement to do so. GAO must decide a protest within 100 calendar days of filing and GAO never misses that requirement. Protests at the COFC are not required to be resolved in any minimum amount of time. The COFC rules encourage a quick resolution, and the COFC judges will usually resolve a protest within approximately three months of filing, if not sooner.

What are my chances of success?

The chance of success for an agency-level protest is very low. No one tracks these outcomes, but the chances are probably less than 10%, and maybe much less. Based on our experience, the odds of success at the Court of Federal Claims are significantly higher, but like agency protests no one tracks these outcomes.

GAO, however, is different. GAO publishes its statistics annually. For fiscal year 2020, GAO announced the highest “effectiveness rate” ever: 51%. GAO defines an effectiveness rate as “[b]ased on a protester obtaining some form of relief from the agency, as reported to GAO, either as a result of voluntary agency corrective action or our Office sustaining the protest. This figure is a percentage of all protests closed this fiscal year.” So, if you file your protest at GAO, it is more likely than not that you will get some sort of relief, including most commonly a re-evaluation of the proposals, including the protester’s proposal. We think the odds are higher with an experienced bid protest legal counsel. Unfortunately, statistics can be misleading and no one can guarantee any results. But our attorneys are experienced enough to advise you on the merits of your protest.

If I am the awardee and someone protests my award, how can I protect my award?

As the awardee of a federal contract, you are permitted to participate in a GAO or COFC protest of your award. You or your counsel can provide whatever assistance you can to aid the agency in defending your award. You or your attorney can file separate written defenses on the same schedule as the protester at GAO or as the government at the COFC.

If I lose my protest at the GAO, can I appeal?

There is no right of appeal from a GAO decision. However, a protester that loses at GAO can refile that same protest at the U.S. Court of Federal Claims and the COFC will consider the protest from the beginning. The COFC will usually consider the GAO opinion as advisory, but the GAO’s opinion will not be binding on the COFC. There are many examples of cases that a protester has lost at GAO but later prevailed at the COFC.

These are just some of the questions that we get from clients who are contemplating pursuing some type of bid protest. Please do not hesitate to contact us if you are interested in engaging experience bid protest lawyers. We have over 30 years’ experience in handling protest matters and have handled more than 250 protests of all kinds over that time.