Last week, I had the opportunity to participate in the Office of the Director of National Intelligence’s 12th Annual Intelligence Community Legal Conference to discuss acquisition reform with some of the top government attorneys in the intelligence community. Much to my surprise, the majority of the conversation focused on bid protests and the impact that protests have on federal procurements. During my time as a government attorney defending against bid protests, I gained valuable insight into how the government works to defeat them and what contractors can to do improve their chance of success. Some of these lessons are shared below.
If bid protest litigation were compared to the “World Series of Poker”, the government would be the veteran, professional player with the biggest stack of chips at the table. The protester, on the other hand, would be an amateur player with just a few big blinds left in his stack. The cards, or in the case of bid protests, the facts, are not necessarily controlling because the professional players possess several other advantages. First, they have much more experience playing the game and often were trained by some of the best veteran players. They also possess information about all of the other players and control that information by limiting the amount they provide to the protestor. Finally, while the protestor, in most cases, is always all in, when the government loses a hand, they are not eliminated from the game.
One of the government’s favorite tactics in bid protest litigation is using motions practice in an early effort to dismiss a protest filed with the Government Accountability Office (GAO). The bottom line is that a procedural dismissal is considered a win for the government. Dismissing one issue, or sometimes even several issues, reduces the government’s litigation risk and protects the government against protests and other costs. Procedural motions can also provide the government with an early read on whether the protest has any merit. As a Trial Team Chief, the first thing that I would discuss with junior attorneys assigned new protest matters was whether or not it was a “quick kill.” I would explain that the GAO has approximately 50 standard dismissal letters that it uses to dispose of protests before even getting to the merits of the case. If we could find a way to fit the facts or circumstances into one of these areas we could quickly kill the protest and move on to another pressing matter.
Government motions to dismiss before the GAO can generally be broken down into four areas:
- the GAO lacks jurisdiction over the matter
- the protest is untimely
- the protester is not an interested party
- the protest fails to state a valid basis for protest
In my experience, the easiest and most often used “quick kill” motion is a motion to dismiss a protest because it wasn’t timely filed. The timeliness rules concerning the deadlines for filing bid protests can be confusing to even the most experienced practitioners because different timelines can apply to different types of procurements. There are also timelines that dictate whether or not the government is required to stay a procurement pending the resolution of the protest. Recent legislation regarding enhanced debriefings has made this issue even more complicated especially for an inexperienced protestor. At Cohen Seglias, we often encounter protestors who miss filing deadlines because they do not understand these complicated rules and, as a result, are unable to move forward with their cases. If these contractors had decided to file protests at the GAO, the government would have likely moved to dismiss the protests and the assigned government attorney would have been credited with a “quick kill.”
Another favorite tactic of the government is to file a motion to dismiss a bid protest on the grounds that it fails to state a valid basis for protest. These motions can be very effective and are typically used to limit the government’s litigation risk by narrowing the scope of a protest that contains multiple issues or protest grounds. This is especially true in cases where a protester has limited access to the information the government relied upon when making the contract award and, as such, cannot fully evaluate or develop the protest grounds. I often used this tactic to successfully defend against bid protests by either getting the protest dismissed in its entirety or by narrowing the scope of the protest and, in many cases, limiting the amount of information the government was required to provide to the protestor under the GAO discovery rules. This might seem like a small victory but limiting the amount of information that a protester is provided reduces the likelihood of a supplemental bid protest and increases the government’s chance of success.
At Cohen Seglias, we use these insights, as well as those of my colleagues, to help contractors navigate the federal procurement process. Recently, I was asked by a reporter at Law360 why I chose to join the firm. The answer is quite simple. Our Federal Contracting Group is unique because the majority of attorneys practicing on our team have previously worked for the federal government, defending the government in the exact type of cases that our clients are now bringing. This experience gives us a distinct advantage against the government because we know the tactics that they are going to use and we know how they will try to defend against our client’s cases. If you have any questions concerning bid protest litigation please contact us so that we can utilize our prior government experience to help even the odds of your case.
Timothy A. Furin is a partner in the firm’s Government Contracting Group. He draws on his background as an acquisition law specialist in the U.S. Army Judge Advocate General’s Corps to help clients navigate the federal government procurement process.