Over the years, numerous changes to federal procurement laws and regulations have been put into place to improve the fairness of the acquisition process between contractors and government agencies. Nevertheless, for a variety of reasons, these standards do not always ensure that the process will be handled fairly or as it should.
If the fairness of the competitive bidding process is called into question, an Offeror (an “offeror” is an organization that submits, or “offers” a bid, as opposed to a contractor, generally referring to an organization that has been awarded a contract), generally has the right to protest the award. There are a number of significant factors to consider, even before making a final decision. The government contract consultants and attorneys at PHA are able to help both new and experienced contractors determine if the process has been handled properly or not, assess the legal and factual merits of a potential challenge and help prepare the protest once a decision to proceed has been made.
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.
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 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.
At some time, virtually all government contractors will consider protesting an agency’s decision to award a contract to a competitor. The decision to protest or walk away has many implications that should be carefully considered before a protest is filed. There are a number of times when it’s just not worth the time and cost; however, there are many times when you may be on solid ground to challenge an award. Will you know the difference? Let the experts at PHA guide you through the process and help you make the best business decision.