Lost a Federal Contract Bid? How the Protest Process Works


To have loved and lost is better than never to have loved at all, but to have spent company money chasing an opportunity in federal sales and then to lose -- that stings.

Since even the best of companies lose out on contract opportunities with the fed, often there's little to do but cope. The first step is to request a debrief, if you're entitled to one. And if you're entitled to one, ask for it; when the government volunteers feedback, you should want to hear it. But if there's reason to believe that the government was prejudiced against you, there's recourse through the protest process.

There are three main types of protests:

* A protest that some aspect of the solicitation itself is prejudicial to your company.
* A protest that exclusion from competitive range or other aspect of the negotiated stage of a procurement was unfairly done.
* A protest that the final selection process was flawed.

These are pre-bid, pre-award, and post-award protests, respectively. Pre-bid and pre-award protests often get imprecisely lumped together as pre-award protests, since a pre-bid protest does occur before contract award. But the two are significantly different; protests made after government receipt of a proposal or quote have far more in common than protests made before the date bids are due.

The simplest are pre-bid protests against unduly restrictive solicitation, improper requirements bundling, ambiguous language, or unreasonable evaluation criteria.

Both pre-award and post-award protests can succeed if, for example, there is evidence that the agency held improper discussions with a competitor during negotiations, if it misunderstood your price, or if it made the award based on evaluation criteria different from those listed in the solicitation.

There are three forums for most (not small-business-specific) protests: the contracting agency itself, the GAO, and the Court of Federal Claims.

Filing a protest with an agency or with the GAO typically causes the agency to suspend further execution of the procurement, whether the protest is filed before or after a contract award. At the Court of Federal Claims, you can ask for a temporary restraining order or a preliminary injunction against the agency.

A protest to the GAO almost automatically activates a provision in the Competition in Contracting Act of 1984 (CICA) that requires agencies to suspend procurements while the GAO evaluates a protest. Agencies can override an internal or CICA stay, and the perception among experts is that agencies are more likely to do so when the stay order originates from itself.

For better or worse, agency-level protests are relatively rare, since most protest experts doubt agencies' ability to fairly evaluate themselves. Agency-level protests also lack the kind of document disclosure process that the GAO facilitates. Keep an eye on GAO deadlines for filing a protest. Once you blow GAO timeliness deadlines for filing a protest, there's no going back. The GAO is finicky in the extreme about enforcing its timeliness rules.

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