Maria is a partner and the Chair of the Government Contracting department. She focuses her practice exclusively on federal government contracting and procurement, guiding her clients throughout the entire lifecycle of their...Read More by Author
Avoiding Common Bid Protest Mistakes, Part 1: Understanding the Differences Between Post-Award Protests and Pre-Award Protests Concerning the Terms of a Solicitation
There is no denying that we are deep in the first protest season of the year. Every February/March, as federal government activity ramps up after the holidays, so do the bid protests. If you are currently asserting or defending a bid protest, you are certainly not alone. Unfortunately, if you are confused about the details, mechanics, and timing, of bid protests – well, you also are not alone. For the next few weeks, we will be talking on this blog about the most common mistakes contractors make regarding bid protests. Today, we’re tackling the issues surrounding certain pre-award protests. Specifically, we will be discussing how to identify, and when to file, pre-award bid protests based on challenges to the terms of a solicitation itself. (Pre-award protests in FAR Part 15 competitive range situations will be addressed in a later post).
Every year, we see contractors make the same mistake: We see these contractors confuse pre-award protests with post-award protests, wait too long to file, and lose their protest rights. This is likely because the majority of contractors are most familiar with the latter type of bid protest, those that happen post-award. (Post-award protests arise in situations where the contractor receives an unsuccessful offeror notice, or otherwise gets notice that another company has received the award the contractor was competing for.) Fewer contractors are familiar with the circumstances leading to pre-award protests – especially those challenging the terms of a solicitation – and fewer still are aware that the timeline to file such protests is different than the old post-award protest they are familiar with.
Under GAO regulations, a protest concerning alleged improprieties in a solicitation shall be filed prior to bid opening or the time set for receipt of initial proposals. In other words, if you think there is something improper about the terms of a solicitation itself (we will talk about some examples in just a moment), you need to file that protest before bids or proposals are due! If you follow the typical post-award timeline and wait until after award, you will be too late. Most likely, you will have lost your right to protest all together. Don’t make this all-too-common mistake! To avoid it, it is critically important that you learn how to identify those issues that should be challenged before submission of bids/proposals.
So what are some examples of the types of protest issues you need to raise at this stage? In short, anything pertaining to the terms of the solicitation itself. Some of the most common issues are as follows:
- Ambiguity in the solicitation terms or contradictory provisions. If you think the terms are vague, confusing, or in conflict with one another, protest now! Of course, if there is an opportunity to ask questions of the agency first, avail yourself of that. But keep an eye on the calendar and make sure you leave yourself enough time to get a protest in before the date for bid/proposal submission.
- Exclusion of a required provision, or inclusion of a term or provision that should not be there (we have all seen governmental cut and paste errors) are also common bases for pre-award protests. For example, if you are a HUBZone company and you notice that the agency should have, but did not, include the HUBZone preference provision, don’t wait until the agency improperly evaluates offerors’ prices and gives the award to another offeror. You need to protest early!
- Another big one is the agency’s use of “unduly restrictive” terms. By way of further explanation: While federal agencies have a lot of discretion in selecting the evaluation criteria they will use to evaluate and compare offerors, that discretion is not unfettered. If the agency structures a solicitation in a way that restricts competition, and the agency cannot explain why such restrictions are necessary to meet the agency’s legitimate needs, that is protestable as unduly restrictive. We have handled many protests of this nature; if you can show that the agency’s restrictions serve no legitimate purpose, the agency may ultimately need to go back to the drawing board and revise its evaluation criteria. So if you think that the terms of a solicitation are unduly restrictive and therefore impair your ability to compete or put you at an unfair disadvantage as compared to your competitors, protest it! Don’t wait to see how the evaluation shakes out and try to protest the award. By then it will most likely be too late.
- Protests dealing with “rule of two” or set-aside issues – sometimes called, in the SDVOSB context, “Kingdomware protests” – are another type of challenge that should be raised before submitting bids/proposals. The decision to set-aside a procurement is considered a term of the solicitation and, is in any event, is something that is evident on the face of the solicitation. So if you think the agency made a mistake in setting aside (or not setting aside) a procurement, raise it pre-award.
- Any challenges based on an agency’s allegedly improper use of Lowest-Priced, Technically Acceptable (LPTA) procedures would also be something you want to protest pre-award. We discussed in a previous blog post the recent regulatory changes designed to limit the government’s use of LPTA. Undoubtedly, as the industry gets accustomed to these new limitations, there will be solicitations that include LPTA-type procedures when they shouldn’t. This would be an appropriate basis for a pre-award protest.
Sometimes it can be hard for contractors to differentiate between these types of issues relating to solicitation terms. If you have any questions, it is wise to consult an attorney and consult them early, so you can make sure to meet any pre-award deadlines. If you have questions about bid protests, you can check out our recent GovConExaminer Live! Webinar on Asserting Bid Protests, or give us a call. And, of course, remember to stay tuned for more common bid protest mistakes in the upcoming weeks!
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.