By Holly Powell, Procurement Analyst, North Carolina Military Business Center
A previous article in this series dealt with what happens after your firm submits a proposal to the federal Government and how to obtain a debriefing if you did not win the contract. It is possible that you may learn through a debriefing or otherwise that the Government may not have conducted the acquisition in accordance with their solicitation and/or applicable regulations. In that case, you have recourse to challenge the outcome.
Your first thought may be to contact your congressional representative in an attempt to get him or her to intercede on your behalf. As a former federal Contracting Officer (KO), I recommend that you not take this course of action. Although the facts will be reviewed, the KO will most likely draft a polite reply saying thanks a lot for inquiring on the behalf of your constituent, but we conducted a competition in accordance with the regulations, and unfortunately, your constituent’s proposal did not offer the best value to the Government. End of the congressional inquiry, and you have missed the deadline for filing a timely “protest”!
Because the Government does sometimes make a mistake during the acquisition process, you have the right to file a “protest” at either the agency level and/ or with the Government Accountability Office (GAO). Note that your protest need be no more than a letter or even an email. However, in order to be considered, a protest regarding contract award must be filed no later than 10 calendar days (unless the last day falls on a Saturday, Sunday or federal holiday in which case it is due on the following workday) after the basis of the protest is known or should have been known, whichever is earlier. When debriefings are required for negotiated procurements under Federal Acquisition Regulation (FAR) Part 15, this will be no later than 10 days after the debriefing occurs. Although there are a few exceptions, generally, your protest will be dismissed without consideration if it is late.
A firm usually chooses to file a protest to the agency rather than to GAO when they want to keep the issue relatively low key and informal. All protests that are filed directly with the agency must be addressed to the contracting officer or other official designated in the solicitation to receive protests. See FAR 33.103 at http://www.arnet.gov/far/ for exactly what you must include, and make your protest as detailed and factual as possible. You certainly don’t need an attorney to represent you in an agency-level protest, but you may retain one. If you request it and the agency offers it, there may be an independent review of your protest at a level above the contracting officer. In any case, there should be a review by at least the KO and their legal counsel.
Agencies are supposed to make their best efforts to resolve agency protests within 35 days after the protest is filed, and the response should explain the agency position. If your protest convinces the agency that their acquisition process and/or source selection decision was flawed, they can take appropriate action to remedy the situation. On the other hand, they may proceed with the contract award and deny your protest later!
If you file a protest at the agency level and fail to get a favorable decision, you do have a right to file a subsequent protest to GAO. See http://www.gao.gov/legal/bidprotest.html for complete information about filing a protest with GAO. Note, however, that given the particular set of circumstances, you could end up forfeiting your ability to file a timely protest to GAO if you file a protest at the agency first. Because of this and because of considerations discussed below, you may choose to file your initial protest with GAO.
In contrast to agency-level protests, protests to GAO are serious challenges to actions taken by an agency and can be quite complicated. Of course, upon receipt of your GAO protest and review of the facts, the agency may inform GAO that they will take corrective action rather than trying to defend your allegations. However, if the agency decides not to do this, they are required to create a protest file, a KO statement of facts and a legal argument defending their actions, and you will get a chance to file comments in response. Note that GAO has 100 days (or 65 days under the express option) from receipt of your protest to issue a decision.
It is important to note that if certain conditions are met, a protest filed with GAO can prevent the agency from proceeding with contract award or may require the agency to “stay” (stop) contract performance under an awarded contract until GAO issues a decision. The ability to stop the contract could be an important consideration since it is possible to win a protest only to learn that contract performance is complete by the time the decision is issued!
Note that you are not required to have an attorney represent you in a GAO-level protest, but would be well-advised to hire one with expertise in federal Government contract law, especially if the acquisition is particularly complex and/or high dollar value. Furthermore, in a GAO-level protest, the agency may release documents under a protective order that only an attorney may be allowed to view. Those documents could end up containing information that you need to win your case. And, note that if GAO decides the protest in your favor, the agency will be directed to pay reasonable attorney fees.
As for the pros and cons of filing a protest, only you can decide if it is the right thing for your business. You could say that the possibility of a protest keeps the Government acquisition process fair and honest. Some firms that do a large volume of business with the federal Government have a no-protest policy. In contrast, a few firms file a protest every time they compete for and fail to win a federal contract. Your protest history is not allowed to be a consideration in the award of future Government contracts—however, you can’t help but create a reputation with your Government customer if you repeatedly file frivolous protests. My recommendation is that you learn about your right to protest and use that right judiciously!
For assistance in pursuing federal Government contracts, contact the North Carolina Military Business Center at 877-245-5520 or go to www.ncmbc.us and click on the Contact Us tab.
[Disclaimer: This article is based on information current as of August 1, 2008 and is not to be construed as legal advice. In the interest of brevity, this article provides only very general information concerning contract award protests.]
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