Protest of Awards

What Are The Typical Standards For The Competitive Bidding Process?

Almost all acquisitions are designed to achieve several broad policy goals:

• The competitive bidding process will be transparent and is open to applicants who meet the requirements specified in the Request for Proposal (RFP) or other comparable bidding document.
• The government is expected to develop a level playing field to the maximum extent possible.
• The contract is to be awarded based solely upon the RFP’s stated evaluation criteria and without bias.

Not with standing the broad policy goals above, the specific language used to evaluate a given bid or proposal may vary significantly from contract to contract. Most protests are based on the belief by the Offeror that one or more aspects of the evaluation have been improperly or unfairly determined. If an Offeror’s protest successfully argues that the government failed to uphold certain standards throughout the solicitation and award process, there are several options for the government to undertake “corrective action” in order to “get it right.”

Timelines for Filing Protests

Protests may be filed in multiple venues:

• Directly with the contracting officer;
• the Government Accountability Office (GAO);
• the Civilian Board of Contract Appeals (CBCA);
• The Army, Navy and Air Force Boards of Contract Appeals;
• Court of Federal Claims (CoFC);

The federal acquisition process generally affords Offerors the opportunity to file protests before award in certain cases; in others, an Offeror must protest before award, in order to preserve important rights to protest after award, if they believe the process has not been handled properly or fairly.

There are different procedures that govern the process depending on whether it is a pre-award, or post-award challenge. Both types of protests must prove the party submitting the protest has an economic interest in the resulting contract. PHA has years of experience with strategic decisions about both pre-award and post-award protests, and providing guidance to organizations throughout all phases of the process.

Pre-Award Protests

A pre-award protest is initiated before an award decision is made. Typical grounds for a pre-award protest include, for example, when:

• the language of the RFP is unclear or ambiguous;
• a competitor is alleged to have an organizational conflict of interest (OCI);
• the terms of an RFP are believed to be unduly restrictive, thereby limiting competition.

Post-Award Protests

Post-award protests are initiated after a contract has been awarded. Post-award grounds for protest often include the following allegations:

• the awardee is believed to be incapable of meeting the stated requirements;
• the government did not adhere to the RFP’s evaluation criteria;
• the awardee was shown some type of favoritism; and
• the awardee had an unmitigated conflict of interest

The PHA Government Protest Consultants

PHA has over 20 years of experience with all phases of the protest process including, but not limited to:

• Proposal compliance and vulnerability review prior to submission;
• Participation and direction of debriefings following both successful and unsuccessful award decisions;
• Review of related case law and decisions by the Government Accountability Office (GAO) and Court of Federal Claims (CoFC);
• Drafting technical sections of protest filings;
• Serving as a Subject-Matter Expert advising lead government contracting attorneys;
• Outcome prediction;
• Participating in Alternative Dispute Resolution (ADR);
• Preparation of written responses to interrogatories;
• Preparation of questions for deposition of government contracting`personnel;
• Participation in depositions of government contracting personnel; and
• Participation in settlement negotiations between client and government.