When it comes to winning a government contract, the bidding process can be fierce and competitive. But what happens when a bidder believes the process was not conducted fairly or the winning bidder was not the most qualified or lowest-priced?
That's where bid protests come in. A bid protest is a formal challenge to the terms or award of a government contract, allowing bidders and other interested parties to object to the procurement process or the selection of a winning bidder.
In this blog, we'll explore the reasons for filing a bid protest, the process for doing so, and the potential outcomes of a protest in the federal contracting arena.
Reasons to File a Bid Protest
Bid protests can be filed by any interested party, including a bidder that was not selected for the contract, a competitor of the winning bidder, or even a taxpayer. The protest may be filed with the contracting agency, the Government Accountability Office (GAO), or in federal court.
There are several reasons why a bidder might file a bid protest, including:
- The bidding process was not conducted in accordance with federal procurement laws and regulations.
- The winning bidder was not the most qualified or lowest-priced bidder.
- The contracting agency made a mistake in evaluating the bids or proposals.
- The solicitation for bids or proposals contained defects or was ambiguous.
- The contracting agency made a decision that was not in the government's best interests.
The Process
Here is an overview of the process for filing a bid protest with the contracting agency, the Government Accountability Office (GAO), and in federal court:
1. Filing a bid protest with the contracting agency:
- The protest must be filed within certain time limits, which vary depending on the type of procurement and the grounds for the protest.
- The protest should be in writing and should include specific facts and arguments to support the protest.
- The protest should be addressed to the contracting officer, who is responsible for managing the procurement process.
- The contracting officer will review the protest and decide whether to sustain or deny the protest.
- If the contracting officer denies the protest, the bidder may file a protest with the GAO or in federal court
2. Filing a bid protest with the GAO:
- The protest must be filed within certain time limits, generally within 10 days of when a protester knows or should know of the basis of the protest (a special case applies where, under certain circumstances, the protester receives a required debriefing).
- The protest should be in writing and should include specific facts and arguments to support the protest.
- The protest should be filed online through the GAO's electronic protest docketing system.
- In the first 30 Days after a protest is created, the agency has an opportunity to file a request for dismissal.
- If a protective order is issued, attorneys may file for access to additional documentation on both sides.
- In the next 40 – 100 days, GAO may request additional filings from both parties, find other ways to resolve the dispute, which could involve hearings, or dismiss the protest for no response.
- If a decision is not made sooner, then it will be made on day 100.
- The GAO will then issue a decision on whether to sustain or deny the protest.
- If the GAO denies the protest, the bidder may file a protest in federal court.
3. Filing a bid protest in federal court:
- The protest must be filed within certain time limits, generally filed no later than 10 days after the basis of the protest is known or should have been known, according to FAR 33.103(e).
- The protest should be filed in the U.S. Court of Federal Claims or in the U.S. District Court where the contract was to be performed.
- The protest should be in the form of a complaint and should include specific facts and arguments to support the protest.
- The complaint should also include a request for relief, such as an order directing the agency to take corrective action or awarding the contract to the protester.
- The complaint must be served on the appropriate parties, including the contracting agency and the winning bidder.
- Service can be accomplished through personal delivery, mail, or electronic means, depending on the specific rules of the court.
- The agency and the winning bidder will be able to respond to the complaint by filing an answer or a motion to dismiss.
- The court will typically hold a hearing on the complaint, at which the parties can present their arguments and evidence.
- The court will review the complaint and decide whether to sustain or deny the protest.
- The court's decision is binding on the agency.
- Either party may appeal the court's decision to a higher court.
Bid protests can be a complex and time-consuming process, but they can also be an important tool for ensuring a fair and competitive procurement process. It is important for contractors to understand their rights and options when it comes to bid protests and to consider seeking legal counsel or a qualified third party if they wish to file a protest.
Potential Outcomes
While bid protests can be frustrating for all parties involved, they serve a crucial role in ensuring that the government's procurement process is transparent and follows the rules.
By ensuring that the process is fair and competitive, bid protests help to protect the integrity of the government's procurement system and build trust between contractors and agencies.
If you need any help understanding the bid protests further or if you need help getting the process started, feel free to reach out to us at US Federal Contractor Registration (USFCR).
We have compliantly assisted more than 300,000 contractors with the System for Award Management (SAM) along with a multitude of government agencies registrations. Trust in USFCR to be your partner for success.