By: Michael H. Payne
To protest or not to protest, that is the question. That may sound a little like William Shakespeare, but it actually is a question frequently posed by federal contractors. Particularly in the world of “best value” contracting, where subjective evaluation factors are applied to make source selections, contractors often feel that award decisions are unfair. A bid protest offers the possibility of relief in the form of corrective action by the agency, or in the form of a favorable protest decision by the agency, the GAO, or the United States Court of Federal Claims. Successful protests, however, require knowledge of procedural rules, an understanding of applicable procurement regulations, and knowledge of the extensive body of GAO and federal court decisions.
Put simply, it is a waste of time and money to file a protest that is untimely or that does not lay out the basis for the protest properly. Similarly, it is very important to know whether a procurement regulation addresses the subject of a protest, or whether there have been prior GAO or court decisions that help, or hurt, the contractor’s case. If a prior decision dealing with similar facts and issues agrees with the contractor’s position, it may be possible to convince the agency to take corrective action by simply providing the Contracting Officer with a copy of the decision. On the other hand, if a prior decision has ruled against the contractor, it may not be advisable to proceed with the protest unless you have found a way to distinguish your facts from those in the unfavorable case.
A federal contractor has the option of filing a protest with an agency, the GAO, or the U.S. Court of Federal Claims (See FAR 33.1). While agency and GAO protests can be filed by letter, the letter must explain the basis for the protest in detail with citations to regulations and case law. This is particularly important when filing a GAO protest because the GAO will summarily dismiss a protest that does not provide a sufficient basis in fact and law. (See FAR 33.104 and 4 CFR Part 21 for the rules that govern GAO protests). When filing an agency protest, consideration must be given to the fact that you are essentially appealing to the same person, the Contracting Officer, who took the action that gave rise to the protest. Although there are exceptions, you may not receive an objective review if you file an agency protest. (See FAR 33.103 for the rules that govern agency protests). Generally speaking, both agency and GAO protests must be filed within 10 calendar days of the date when the contractor knew, or should have known, of the basis for the protest. If the protest involves a challenge to the solicitation itself, the protest must generally be submitted before the date for receipt of bids or proposals. (Note: In a protest of a negotiated procurement, the GAO requires that the protester must participate in a debriefing as a prerequisite to the filing of the protest. Accordingly, the protester has 10 days from the date of the debriefing, but the protest must be filed within 5 days if the protester wants to prevent the performance of the project while the protest is pending).
In the case of a Court of Federal Claims protest, there is no specific time limit, and a debriefing is not a prerequisite. It is more complicated, and expensive, to file a federal court protest, however, because a complaint, a memorandum of law, and a number of related documents required by the court’s rules must be prepared. Unlike an agency, or GAO protest, a Court of Federal Claims protest will generally be decided after each side files briefs in support of cross-motions for “Judgment Upon the Administrative Record.” The briefing is followed by an oral argument before the judge assigned to the case. In my experience, this procedure is more open and fair, and frequently holds out the highest probability of success. In view of the expense involved, however, a Court of Federal Claims protest (or any other type for that matter) should not be undertaken without first receiving legal advice about the prospects for success.
As an attorney who has been advising contractors on protest matters for over thirty years, I find the procedure involving protests on negotiated procurements to be particularly frustrating. Unlike sealed bidding, where everything is out in the open, negotiated procurements are shrouded in secrecy. Proposals are closely guarded and only the award price is generally disclosed. While an unsuccessful offeror may learn a little bit about why he was not selected during a debriefing, the sad reality is that it is often impossible to know whether there is a sound basis for a protest without first filing a protest. The reason for this is that until the agency’s internal documents in support of the source selection are reviewed, it is virtually impossible to tell whether the source selection was justified. I find this frustrating because I am often forced to tell my client that I cannot offer an opinion on the probability of success until after the protest is filed and the agency’s documents are reviewed. There are other times, of course, when the prospects for success, or failure, are known at the outset and the decision to proceed with a protest is much easier to make.
To add to the frustration, an attorney is not permitted to share the agency’s documents, or to reveal “protected” information to the client. It is routine, in the case of GAO and Court of Federal Claims protests, for the agency’s documents to be provided only after a Protective Order has been agreed to by the attorney and approved by the GAO or the Court. What that means is that only the protester’s attorney is permitted to review the agency’s documents. It is imperative, therefore, that a contractor be represented by an attorney who understands procurement law and who can be relied upon to make sound judgments based upon what is revealed in the agency’s documents. In my practice, I have frequently advised a client to withdraw a protest after I have reviewed the agency’s documents. This saves time and money, and prevents an unfavorable decision. If the documentation supports the protest, however, we can then forge ahead with the knowledge that a well-supported argument will be presented.
It is not uncommon for contractors to fear retribution by the agency if they file a protest. I have not found that to be the case in my experience, although I certainly would advise against filing a protest that makes a personal attack or that is frivolous. Given the tough economic and highly competitive time in which we live, government agencies have become accustomed to bid protests and they do not harbor any ill will. In the last analysis, protests keep government officials on their toes and help to assure that contracts are awarded fairly.
Michael H. Payne is the Chairman of the firm’s Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on bid protest matters.