Government contracting can be very rewarding, but requires navigating a complex mix of laws, rules, processes and regulation. For many contractors, the bid and proposal process is one of the most daunting aspects of this type of work.
Although the government has established standards designed to ensure fairness and impartiality in the process of bidding and awarding contracts, there are many instances when an award appears to be improper. When a bidder believes this has taken place, they may exercise their right to protest.
What Is The Right To Protest?
The right to protest gives contractors recourse for situations in which they know or suspect that a bid may have been awarded improperly. Most public agencies are required to buy goods and services through competitive procurements designed to ensure fairness and impartiality. Virtually all businesses that bid on government contracts expect that the rules and regulations of the procurement system will be implemented fairly and equitably.
Whether it be an oversight, mistake or blatant disregard for these regulations, contractors have the right to file a protest before one of three main venues to ensure their interests are protected:
- the agency that is making the award;
- the Government Accountability Office (GAO); and
- the United States Court of Federal Claims (COFC)
Exercising the right to protest must commence as quickly as possible after the grounds of the protest first become known. In most cases, the basis of a protest first becomes known during a debriefing after award. In general an unsuccessful bidder has 10 days to appeal.
Grounds For Filing Bid Protests
There are many reasons for protesting a government bid. Some of them include the following
Mistakes During Evaluation
Every bidder is presumed to have the same information to prepare their bid, and it is their responsibility to provide all the information required in their proposal. The debriefing of an unsuccessful bid or proposal often reveals information that raises questions about whether the evaluation was handled properly. If, for example, evaluators overlooked required data that was submitted, or the price proposal shows incorrect calculations by the government, or a past performance response, or some other mistake that prevented a fair evaluation of the bid, affected contractors have a right to take action.
Lack of Impartiality
Ideally, there should be a “level playing field” for all procurements, however, many evaluations show that the field is not, in fact, level. Numerous protests are filed if the evaluation demonstrates favoritism or bias towards a particular bidder. No bidder should be favored because of a previous or personal relationship…but it happens.
Favoritism may arise with respect to communications. Generally, there is a “cone of silence” after the official solicitation process begins and contractors may be directed to have communications exclusively with the Contracting Officer (CO). This is designed to help protect the integrity of the procurement process by avoiding undue influence prior to award. Improper communications with the CO or other government personnel with the ability to influence the process may be grounds for protest. Iif this occurs, or is suspected of having occurred.
Improper Responsibility Determination
Before an award can be made, the Contracting Officer is required to make an affirmative determination of responsibility, as defined in the Federal Acquisition Regulation. For example, a CO may be unable to make an affirmative determination of responsibility if a bidder is found to have a history of contract defaults or terminations, poor performance, criminal convictions, or not having the licenses, certifications or other credentials required. There may be grounds for protest if a company that wins a contract should not have received an affirmative determination of responsibility, or if your proposal did not receive an affirmative determination of responsibility, and should have.
Unresponsive Bid
Bids should only be considered responsive if they comply with all material requirements and specifications stated in the bid documents. Award to a contractor who does not meet all of the requirements and specifications may also be grounds for protest.
When To Protest
Contractors uncertain about whether they should protest a particular award need to consider several key factors before filing a protest. Among them include:
- Legal basis of the allegations;
- Cost of filing and pursuing a protest;
- Probability of success; and
- Recommendation of attorneys.
Every unsuccessful bid should not be protested. Choosing when to protest is an important business and strategic decision, and requires solid evidence to support the claim.
Working with contract consultants experienced with protests can help you understand whether you have a firm basis for your claim, and if it is worth moving forward. If a decision to proceed is made, they will then determine the best venue to file.
Schedule a Consultation with the Federal Contracting Experts at PHA
If you believe you have grounds for a protest, contact the government contracting experts at Potomac Health Associates today or call us at (703) 851-1780 to discuss your case. Our experienced consultants help organizations with all aspects of filing a protest.