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This article is for your personal information only and is not intended as legal advice. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a professional. Always consult a licensed attorney for your particular case. Nothing herein shall create an attorney/client relationship.
Bid Protests: I Just Lost Out On A Government Contract!
Q. What is a bid protest?
A. A bid protest is a legal challenge to the acceptance or rejection of a bid or proposal to a government procurement opportunity, or a challenge to the award of government contract. If a contractor who bids on an open government contract believes that it lost unlawfully, or if the award of a government contract was procedurally or substantively defective, a contractor may protest its elimination from the competitive process, or ask to have the contract award set aside and competition reopened. If a potential protest issues cannot be resolved at the agency level, a protest may be filed with the General Accounting Office ("GAO").
Q. Who may file a bid protest?
A. A party has standing to file a protest with the GAO if it is an "interested party," meaning an actual or prospective bidder on a government contract with a direct economic interest in the outcome of the bidding process. Generally speaking, in order to be an interested party, a protester must have potentially been in line to be awarded the contract in question if the protest were sustained.
Q. What's the first thing I should do?
A. One of the best things you can do is ask the government for a "debriefing" - an explanation of why you lost. You must act very fast - ask the government for a debriefing AS SOON AS you find out you lost - ideally by return mail or fax. Debriefings can save you time, money, and perhaps most importantly, your reputation. The company needs to notify the government of the request to conduct any required debriefings within three days. An attorney need not be present at a debriefing, but the company should strongly consider consulting with a lawyer beforehand.
Q. What if the debriefing proves to me that I should have won?
A. You can sue the government. It's called a bid protest - a lawsuit that can be as informal as an aggressive letter directly to the agency, an e-mail or letter to the Government Accountability Office (GAO), or a formal lawsuit to the U.S. Court of Federal Claims. A protest to GAO is often used, although an agency level protest may be advisable depending on the circumstances.
Q. Do I have to travel to Washington, DC to file a protest?
A. No. Protests routinely are done through the mail or electronically (fax or e-mail) although you might need to attend a hearing in Washington. When a filing is required it must be timely, and your company should retain proof of its valid timely filing.
Q. If I want to file a protest to GAO, what's the most important concern?
A. Time. The deadline for filing a protest is short - generally 10 days after learning why you lost depending on the situation. Some issues, like the contents or terms of the solicitation, have to be protested by the due date of offers/quotes/bids. Unfortunately, some companies wait a few days before contacting counsel, which may not be a good idea given how short this important deadline is.
Q. What are my odds of winning at GAO?
A. Overall, not that bad (depending naturally on the facts of the case). For example, GAO statistics show that, of all protests that GAO hears, about 40% end up with the protester winning something - another chance to compete in a re-solicitation, for example.
Q. Do I need a lawyer for a GAO protest?
A. No, business people at times do their own protests to GAO. Having an experienced lawyer, though, gives a company several not-so-obvious advantages. For example, a protest using a lawyer makes the agency open up for closer examination more of the agency's files and thus increases the protester's chances of finding government mistakes.
Q. If I use a lawyer and win, can I get the government to pay my legal fees?
A. Winning protesters CAN get a portion of their attorney fees back, although there is no guarantee of that. Sometimes winning can involve other helpful direct benefits such as being provided an additional procurement opportunity.
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