Only "interested parties" can file a protest, and for the most part it's pretty clear who is one. The legal definition of an interested party accepted by the GAO and the Court of Federal Claims is “an actual or prospective bidder or offer or whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Post-award, that means an offeror. Pre-award, that means companies considering participation in the competition. Subcontractors, or potential subcontractors, are not considered an interested party.
It is possible to resolve a problem with a solicitation's requirements or evaluation criteria without having to file a protest. During some solicitations, there is a period before the response deadline during which companies can ask for clarifications, and those requests for clarification often result in ameliorative amendments to the solicitation language.
Even if there's no question-and-answer period, you can still send questions and comments to the contracting officer in writing.
If you gain no relief, you must file a protest before the deadline for submitting a solicitation response. This is true regardless of whether you choose to file at the agency level or with the GAO. The Court of Federal Claims has a strong precedent establishing the same deadline. Filing a protest with an agency or the GAO will cause the agency to suspend work on the procurement. A protest with the court can cause the agency to voluntarily suspend work, but unless you convince a court judge to issue an injunction or a restraining order, there's nothing to compel an agency to wait for the ruling.
If you decide to first file with an agency and the agency rejects your protest, you can still file with the GAO or the court. If you go to the GAO, you have a 10-day filing period after the agency rejects your protest. Should the deadline for submitting a solicitation response fall within the 10-day period following agency rejection, you can still proceed with the GAO protest.
The 10-day period for filing with the GAO starts ticking when the agency delivers an “adverse action” against your protest. But the agency need not necessarily inform you of that adverse action, and you’ll be responsible for realizing that it occurred under the GAO's application of the legal doctrine of constructive knowledge. For example, the agency can make it clear that it's denying your protest by changing the solicitation language, but not in a way that resolves your objections.
The preceding information was adapted and digested from the book “The Inside Guide to the Federal IT Market,” published by Management Concepts Press. For more information, visit www.insideguidetofederalit.com/.
Steve Charles is co-founder and executive vice president of immixGroup, which helps technology companies do business with the government. He is a frequent speaker and lecturer on technology and the federal procurement process. He can be reached at Steve_Charles@immixGroup.com.