The competitive bidding process for federal contracts includes rules and regulations to appeal unfavorable award decisions. This is designed to preserve the fairness and integrity of the acquisition process.
Despite these measures, however, there are many cases where one party believes that there were errors or other improprieties in the award process. The ability to protest the award of a federal contract gives bidders the opportunity to have the process reviewed in different venues.
Filing a protest is a time-sensitive process. Seeking the advice of a federal contracting consultant or attorney can help evaluate the merits of a potential protest and determine which course of action is most appropriate.
Here are some of the things you need to know prior to protesting a federal contract.
What Is A Protest?
There are two main types of protests:
- Pre-award protests are often filed when the terms of the request for proposal are believed to be unclear or unduly restrictive.
- In a post-award protest, the party filing the protest often alleges, for example, that the agency failed to follow the evaluation criteria; that there was some type of organizational conflict of interest; or displayed some type of favoritism or prejudice. If the protest is filed within 10 days of when the basis for the protest first becomes known, contract performance may be suspended.
If a bidder is not awarded a contract, they will be notified by the contracting agency and should be offered a debriefing of the award decision. While a debriefing is not required, all unsuccessful contractors should automatically request one. We also recommend that successful bidders request a debriefing as well. If an unsuccessful contractor believes it was not evaluated fairly based on information learned during the debriefing, it may elect to file a protest.
Filing A Protest
There are three major protest venues available. One avenue is to file a protest with the agency that awarded the contract. This must be done no more than 10 days after the basis for the protest forest becomes known. A protest may also be filed with the General Accounting Office (GAO); this is where most protests occur. A third avenue of protest is filing a lawsuit with the United States Court of Federal Claims (COFC).
A protest filed with the contracting agency may use alternative dispute resolution, conciliation, mediation or even a mini-trial. One goal of an agency protest is to reach an effective resolution in a financially responsible manner.
Most protests are filed with the General Accounting Office (GAO) within 10 days of learning of the basis of the protest. There are some caveats:
- If a contractor receives an adverse decision by the GAO, a request for reconsideration may be made with the GAO. If a protester disagrees with a decision made by the GAO, they have the option to file suit in the Court of Federal Claims.
- GAO is an independent federal agency and reports to Congress. While GAO decisions generally include recommendations for how a dispute should be resolved, it is unable to compel the agency to implement its recommendations. Refusing to follow GAO recommendations is rare, but allowable.
For all practical purposes, protests heard before the U.S. Court of Federal Claims (COFC) have no filing deadline, as long as they are filed within the six year statute of limitations.
How Long Do Protests Take To Resolve?
Although quick resolutions are encouraged, there is no set minimum amount of time and three months may be a typical timeframe. Federal regulations encourage agency-level protests to be resolved within a period of 35 days, but there are no legal requirements for this. The GAO is required to decide protests within 100 calendar days of filing.
Request A Consultation With Potomac Health Associates
Enlisting the advice of a government contracting consultant should be your first step when considering a protest. They will be able to help you determine the most appropriate course of action. Potomac Health Associates helps its clients with all kinds of protest issues as part of its suite of federal contracting services aimed at those in the healthcare industry. Contact Potomac Health Associates today to or call us at 703.851.1780 to request a consultation.