October 20, 2017
Most federal government contractor don’t realize it, but the bid protest system is set up to permit consecutively protesting the same procurement in three separate forums:
- The individual agency.
- The Government Accountability Office (GAO).
- The U.S. Court of Federal Claims (Court).
Even though spaced out over a long time, all of the protests can be timely, provided that the rules are followed.
Suppose you find an ambiguity or other serious defect in a solicitation before any offers are submitted. Under the normal rules in all three forums, you must protest this defect prior to bid opening or the closing date of the solicitation, thereby giving the agency an opportunity to correct the solicitation.
However, you can preserve your right to protest in all three forums in the following manner.
1. Agency: An Agency level protest based on an impropriety in a solicitation must be filed before bid opening or prior to the closing date for receipt of proposals. (Federal Acquisition Regulation 3.103(e)) The purpose is to provide for a simple, expensive, informal and expeditious resolution of protests. Therefore, you would initially file your written protest at the Agency before the closing date, directing the protest to the contracting officer or the person designated for receipt of protests in the solicitation.
“By law, a GAO protest must be filed by an ‘interested party,’ which means an actual or prospective bidder or offeror with a direct economic interest in the procurement… In challenges of the evaluation of proposals and the award of contracts, this generally means an offeror that would potentially be in line for award if the protest were sustained.”
— The GAO
2. GAO: At the GAO, a protest based on defects in a solicitation must be filed prior to bid opening. However, if you have filed a timely (pre-bid opening or pre-closing date) protest at the Agency, you have ten days from the time you have “actual or constructive knowledge of initial adverse agency action.” (4 C.F.R. Section 21.2(a)(3))
As soon as the agency issues a denial of your agency protest (whether oral or written), or takes another action to constructively advise you that you protest is denied (such as evaluating offers and notifying you that you lost), you have ten days to resubmit the protest with the same, or perhaps augmented facts, to the GAO, and the protest will be timely, even though it will be long after the closing date of the procurement.
3. Court: Unlike Agency level or GAO protests, there are no time limits for filing bid protests at the Court of Federal Claims. The Court has jurisdiction to render judgment on both pre-award and post-award protests involving any alleged violation of statute or regulation in connection with a procurement or proposed procurement. (28 U.S.C. Section 1491(b)(1))
Going back to the above example, it is generally the case that any party who has the opportunity to object to the terms of a solicitation containing a patent error but fails to do so prior to the close of the bidding process thereby waives its ability to raise the same objection in a bid protest action at the Court. (Blue & Gold Fleet L.P. v. United States, 492 F. 3d 1308, Fed. Cir., 2007)
However, the case law is clear that the protester preserves its rights to file at the Court by filing a timely protest at the Agency or GAO, and waiting to file later at the Court. “If a party has challenged the solicitation impropriety before the close of the bidding process, the party is not precluded from later filing its protest at the Court of Federal Claims. A party must do something before the closing date to preserve its rights, and must thereafter pursue its position in a timely manner.” (DGR Assoc. v. United States, Fed. Cl. No. 10-396C, slip op. at 15, 8/13/10)
The analysis in DGR demonstrates that provided it follows the FAR or the GAO protest rules a protester may have a second or third bite of the protest apple at the Court. The protester simply must do something before the solicitation to preserve its rights and then follow up in a timely manner.
1. An agency level protest may result in an immediate correction by the agency, particularly where the protest concerns a defect in the solicitation. The agency may simply amend the solicitation immediately and establish a new closing date.
2. By using the three-step process outlined in this article, your protest grievance will obtain the widest review (once by the agency, once by the GAO, and once by the Court).
3. Although the three-step process is more expensive, it gives protesters a greater chance to prevail.
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