United States: Ten Myths Of Government Contracting: Myth No. 1 - We Should Never Protest

Bid protests are an intimidating aspect of Government contracting, not only because they usually mean hiring a lawyer, but also because most people don't even like the thought of suing their customer.  Protests certainly are not part of the commercial business sector, but they are a daily occurrence in Government contracting, and anyone jumping into this business needs to understand how protests work and the role they play.

Most protests relating to a U.S. Government procurement may be filed in three separate places—with the agency, at the Government Accountability Office ("GAO"), or at the U.S. Court of Federal Claims.  (Some agencies, such as the Federal Aviation Administration and the U.S. Postal Service, have their own protest procedures and forum.)  Each forum presents different characteristics, and prudent companies select their forum after consulting experienced counsel.  While we do not have any statistics on the success rate for agency-level protests, the GAO's statistics are published annually.  For the fiscal year completed on Sept. 30, 2013, for example, the GAO closed 2,538 protests, issuing decisions in 509 of them.  The GAO sustained 17 percent of its protests on the merits.  But the GAO has another statistic that is perhaps even more important—the "success rate."  In the fiscal year ending Sept. 30, 2013, 43 percent of the protests filed at the GAO resulted in corrective action.  These statistics show that there are a lot of companies filing protests, these protests are often effective, and they deserve a second look if you have shied away from them in the past.

There are essentially two kinds of bid protests:  those that challenge the terms of a solicitation and those that challenge an agency's award to a competitor.  With respect to the first type, it is critical to understand that any challenge to the terms of a solicitation must be filed before offers are due.  Many companies spot problems in the solicitation, such as specifications that are tailored to a competitor's product, but decide to hold off on filing a protest until after the results of the competition are announced, hoping they will win and reasoning that they have a solid protest issue in their back pocket if they lose.  Their rationale is simple:  let's not rock the boat.  Of course, the fact that the solicitation was written around a competitor's product was a pretty clear message that they weren't even in the boat.  And if they do file this kind of a protest after award has been announced, it will be dismissed as untimely, an argument every Government lawyer has mastered.

Here is what experienced companies do:  First, they review a solicitation thoroughly, and they make notes of any troublesome areas.  Second, they try to resolve any ambiguities, discrepancies or contradictions by applying the "Order of Precedence" clause in the solicitation.  Third, they prepare a list of questions to submit to the agency contracting officer, and they either submit them by the deadline for questions set forth in the solicitation or early enough so that the agency will have a reasonable amount of time to answer the questions (in other words, they don't wait until the last day).  Fourth, if the agency refuses or fails to answer the question, or responds in an unsatisfactory way, the company must decide whether to (a) take a pass on the opportunity; (b) submit a proposal in spite of the risk; or (c) file a protest.  This is primarily a business decision, but it should be made with the benefit of advice from experienced counsel.

The second type of protest, challenging an agency's award to a competitor, usually focuses on whether the agency's actions were consistent with the terms of the solicitation and whether the agency complied with the applicable regulations.  In order for this kind of protest to succeed, a protester must show a material deviation from the solicitation or the regulations and it must also show that it was prejudiced by the agency's actions.  As part of that challenge, a protester must realize that agency contracting officials are given wide discretion in the execution of their duties, and the GAO and the courts do not like to substitute their judgment for an agency official's judgment, but they will if the facts demand it.

In most negotiated procurements, a protest cannot be filed until after a disappointed offeror has received its debriefing.  This is a critical step in the process, and experienced contractors know that they should file a written request for a debriefing immediately after learning they lost.  They also know that they must prepare for a debriefing, understanding what they are entitled to learn and preparing questions they want answered.  The completion of the debriefing triggers the short protest time period, and every day counts.  While the regulations state that a protest must be filed at the agency or at the GAO within ten calendar days after the basis for the protest was known or should have been known, the fact is that most companies, especially incumbent contractors that just lost on a re-compete, want to file at the GAO within five calendar days in order to maximize the chance that the contract at stake will be "stayed" until the protest is resolved.  The U.S. Court of Federal Claims does not have a similar filing deadline, but judges there will not look kindly on a company that drags its feet in getting to the courthouse.

Even if a company has a no-protest policy, it is naïve to believe that it can completely insulate itself from the protest process.  For example, what happens when a company is awarded a large Navy contract and learns two weeks later that a disappointed competitor has filed a timely GAO protest?  Should the company's CEO just start to pray and hope for the best, or should the company intervene in the protest in order to understand what is really at issue and try to defend the award?  Once again, consulting with experienced counsel should yield the right answer.

As a vivid reminder of how important the protest process can be, think back to early 2008, when Boeing learned that the Air Force had awarded a $30 billion contract for a new aerial refueling tanker to Boeing's rival EADS North America.  After its debriefing, Boeing filed a GAO protest, and some 100 days later the GAO issued a decision sustaining the protest and ordering the Air Force to take corrective action.  The Air Force conducted another round of offers, and in February 2011 Boeing emerged as the winner.  Without the protest process, EADS and its teammate Northrop Grumman would be performing that contract in Alabama today.  Of course, not all contracts are going to be that large or garner that much publicity, but the fact remains that most experienced Government contractors understand that situations will arise when they are left with no choice but to file a protest.

This article originally appeared on the blog of the Public Contracting Institute.

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.

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 Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.