United States: Ten Bid Protest Trends And Tips

It is no secret that federal procurement spending has dropped considerably in recent years. With less dollars being spent and fewer procurements, government contracts are increasingly turning to the bid protest process for a second chance to compete for, and hopefully win, new contracts, and preserve their incumbent contracts. The statistics bear this out. Bid protest activity at the U.S. Government Accountability Office ("GAO") has steadily increased year-over-year, with a record 2,561 protests filed in fiscal year 2014 alone. But more filings has not meant more sustained protests; the GAO sustain rate in 2014 fell to its lowest recent level of only 13 percent (though this does not account for voluntary agency corrective actions, which have remained steady). These statistics, and the new federal procurement reality, reinforce the need for contractors to think carefully about effective protest strategies and emerging issues to maximize their chances to successfully protest procurements (or defend contract awards). Below are ten key trends and tips to keep in mind:

1. Common Protest Grounds Remain Winners.

As reported by GAO, the most common protest grounds in 2014 contended that the agency failed to follow stated evaluation criteria, engaged in making and producing a flawed source selection or award decision, engaged in an unreasonable technical evaluation, and/or engaged in disparate treatment between offerors (either in proposal evaluations or through discussions). Recent protests saw fewer challenges involving the lack of documentation or challenges to cost evaluations, perhaps in part because of shifting procurement trends towards the increasing use of fixed price contracts and in connection with the growing number of lowest price/technically acceptable procurements.

2. Focus on Process.

Regardless of the particular argument being advanced, protesters are more likely to prevail if they focus on flaws in the agency's evaluation process. Subjective debates about the merits of an award are almost always unproductive because GAO affords agencies considerable discretion on their conclusions regarding such matters; for example, whether the protester's technical approach was poor, acceptable, good, or excellent. However, this same discretion is not extended the manner in which agency's arrived at their conclusions. GAO will sustain a protest if the protester can show prejudicial process errors, like the agency failed to follow the solicitation's stated evaluation criteria, relied on an unstated criteria to discriminate among offerors, or reached conclusions which are not reflected in the evaluation record. Successful protest arguments often focus on objective process errors in the agency's evaluation and award process. Highlighting these types of defects may also encourage an agency to take early corrective action and can improve the chances of a sustained protest.

3. Make Disparate Treatment Arguments.

Whenever possible, protesters should seek to make arguments that their proposals were disparately evaluated relative to the awardee's proposal. Such unequal treatment arguments are important because they give protesters a basis to request the awardee's proposal as part of the agency report. Having the awardee's information and comparing it side-by-side with yours and the agency's respective evaluations will significantly improve the protester's chances of demonstrating that the agency engaged in improper disparate treatment.

4. Supplemental Protests Are Key.

Because a protestor has limited information at the time of a contract award and initial protest, protestors and their counsel should focus closely on developing protestable issues that will position counsel to have a broader look at the record as the protest develops. As one example, having the awardee's proposal is important because it usually allows the protester to identify supplemental protest grounds. In many cases, protests are won, or corrective action is taken, on the basis of supplemental protest grounds rather than the initial protest.

5. Mind Trends in LTPA Procurements.

Consistent with declining federal spending and efforts to wring cost of out the procurement process, recent years have seen an increasing use of fixed price contracts in lowest priced technically acceptable ("LPTA") procurements, over the more traditional best value procurements of the past. Although offering the lowest price is a necessary part of winning the contract, price alone is not a sufficient condition to award. Offerors must still ensure that their proposed technical solutions demonstrate an adequate understanding of solicitation requirements and is realistic to meet the agency's needs and schedule. If the customer is not confident that the offeror understands requirements and that performance risk can be successfully managed, they may find the offeror technically unacceptable and select the next offeror even though its price may be significantly higher. In short, while price is important, offerors competing for LPTA contracts should ensure that their proposals are compliant with the solicitation's terms, realistic, and whenever possible, demonstrate performance that exceeds minimum requirements or otherwise provides benefits and advantages not required by the solicitation. These potential discriminators, which the agency can recognize as strengths, are still very relevant considerations in LPTA settings.

6. The CICA Stay Loophole.

A primary advantage of filing a protest at GAO versus other forums (e.g., the Court of Federal Claims or directly with the agency) has been the automatic stay of contract performance under the Competition in Contracting Act ("CICA") during the pendency of the protest, which is 100 days, unless the protest is sooner dismissed or the agency takes corrective action. As a practical matter, the stay has benefitted protesters who are incumbents because it has generally resulted in the agency issuing a bridge contract to the protester to continue the work for the duration of the protest. Agencies generally issue a bridge contract, rather than seek an override of the automatic stay before the U.S. Court of the Federal Claims, because of the heavy burden placed on the agency to obtain an override. However, where a multiple award ID/IQ contract is in place, and the protest concerns a new task order under the current contract, some agencies have started circumventing the traditional override process by sole sourcing a task order bridge contract to the non-incumbent awardee at a value less than $10 million. This allows the awardee, rather than the incumbent protester, to perform the contract while the protest is pending. Because GAO generally lacks jurisdiction over task orders valued at less than $10 million, and the Court has no protest jurisdiction over task orders at all, this novel approach effectively allows agencies to bypass the purpose of the CICA stay, which is to preserve the status quo until the protest has been resolved, and leaves protesters with no recourse to either challenge the agency's sole source justification or its circumvention of CICA. Until Congress closes this loophole, the potential lack of a bridge contract during the protest period, and the associated revenue loss, should factor into the risk/benefit analysis for incumbents in such situations when deciding whether to protest.

7. Intervention as Protest Insurance.

Even though the majority of protests that proceed to a decision are denied, a procurement awardee or other interested party has a vested interest in the outcome that almost always warrants participation in the protest process through intervention. No other party to a protest, even an agency that awarded you the contract, will be able to represent your interests as well as counsel admitted under a protective order. Intervention by outside counsel will afford an awardee representation who will have access to complete copies of protest filings, and help assess whether, and to what extent, the intervenor's interests will be served by actively assisting in the defense of the protest. Intervention can run the gamut from merely receiving and reviewing filings to actively coordinating on strategy with agency counsel defending an award, but without participating at all you are leaving your interests at risk. In short, if you can intervene in a protest, you should.

8. Check the Clock.

Bid protests are subject to strict timeliness rules that vary based on the type of procurement and forum. At GAO, contractors typically have 10 days – at the most – to file a post-award protest from when they knew or should have known their basis for protest. Timeliness rules are particularly important where protestors are seeking a stay of contract award or performance (as is almost always the case). For example, to obtain a stay of award under CICA on a procurement with a required debriefing, the protest must be filed - and the agency notified by GAO of that filing - within 5 days of the date offered for the debriefing. The key takeaway: if you've learned adverse information regarding a procurement, the clock is ticking. It is critical to engage your legal advisors as early is possible to prepare an assessment of your options, and if necessary, protest filings.

9. Two Bites at the Apple.

A common strategy is to first file your protest at GAO, and depending on the developments during those proceedings or their outcomes by the GAO, to take another shot by refiling the protest at the Court of Federal Claims. Protesters who find their chances of success low at GAO are free to withdraw their protests and refile them at the Court. Indeed, a protester can refile its protest at the Court even after GAO has denied it. While the Court recognizes GAO's bid protest expertise, it does not consider GAO decisions binding or precedential. The Court is not bound by GAO's analysis or decisions and takes a de novo review of any protests before it. Because the Court arrives at its own factual and legal conclusions it can, and with growing frequency does, sustain a protest previously denied by GAO.

10. Keys to the Kingdom.

Access to an agency's source selection documents and the awardee's proposal is paramount in maximizing your chances of success in a protest. While GAO rules limits a protester's access to documents to only those that are relevant to its allegations, which may only lead to partial access, the Court of Federal Claims requires the government to automatically provide all documents related or used in the procurement as part of the administrative record in the case. Thus, while going to Court is generally more expensive than GAO, this key difference may justify that premium in bigger ticket protests where the entire procurement needs to be carefully scrubbed.

By keeping informed of the latest developments in the bid protest arena, government contractors can position themselves to anticipate key issues in bid protests and advance their interests in contested procurements. This will be of critical importance as the competition to secure new contracts—and retain existing ones—continues to increase.

Originally published by Association of Corporate Counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions