Protests: Timing Is of The Essence

by PilieroMazza PLLC
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Another federal government fiscal year end is quickly approaching and with it comes the usual uptick in spending, awards...and inevitable protests. If you are considering a protest, it is critical to understand the deadlines for filing. When to file varies depending on a number of factors including: the type of solicitation; whether or not a debriefing is required; the protest grounds; and whether the solicitation was a set-aside that may trigger a size or status protest. Different forums are available and/or required depending on the type of protest. The following are some general tips to keep in mind so you do not miss a critical deadline.

Generally, you may be able to file a bid protest with:  

  1. The Contracting Officer; 
  2. The U.S. Government Accountability Office (GAO); 
  3. The U.S. Court of Federal Claims (COFC); or, 
  4. For solicitations issued by the Federal Aviation Administration (FAA), the FAA’s Office of Dispute Resolution for Acquisitions (ODRA).  

Protests challenging the size or status of a proposed awardee must be submitted to the contracting officer, who then has an obligation to forward those protests along to the U.S. Small Business Administration (SBA).

Pre-award grounds for protest generally must be filed before the due date for proposals. Examples of pre-award protest grounds that must be filed prior to the due date for proposals include:  

  1. Inclusion or exclusion of solicitation clauses and provisions; 
  2. The solicitation is unduly restrictive; 
  3. Improper bundling; 
  4. The solicitation is unclear or vague; 
  5. The evaluation method is unreasonable; and 
  6. The agency failed to follow the “Rule of Two” in its decision regarding whether a set-aside was appropriate.

Protests based upon improper cancellation of the solicitation or that an offeror was improperly excluded from the competitive range, generally, can be filed within ten calendar days of the date that the protestor knew or should have known of the basis of protest. If you are able to request a debriefing and the government gives you the option to wait for the award to be made, always take the first available date, even if it is a pre-award debriefing. An offeror will be viewed as having sat on its rights if it does not “diligently pursue” its grounds for protest. A good rule of thumb is to always take the first debriefing date offered, whether it is pre- or post-award.

Post-award grounds for protest generally must be filed within ten calendar days from award or within five calendar days from a required debriefing in order to receive a suspension of contract performance. However, post-award protests may also be timely if filed within ten calendar days of a required debriefing. If a debriefing is not required, such as for Task Orders awarded under the Federal Supply Schedule, then generally the ten-day rule from the contract award applies. Examples of post-award grounds for protest include: 

  1. Improper evaluation by the agency; 
  2. Inadequate discussions with offerors; 
  3. Flawed price realism or reasonableness determinations; 
  4. Improper best value determinations; and 
  5. Organizational conflict of interest (OCI).

Protests as to size or status of the awardee must be filed with the contracting officer within 5 working days from notice of proposed award or notice of award. The contracting officer is then required to forward these protests to the appropriate SBA office.

If you believe you have a potential protest on any of these grounds, it is important to immediately reach out to counsel to be certain of the deadlines. Protests filed outside the deadlines will be dismissed as untimely.

My partner, Jon Williams and I recently conducted a webinar on Navigating Bid Protests which gets into more detail as to who can file a protest, considerations before protesting, understanding the protest process, whether the awardee should intervene in the protest, agency corrective action and recent statistics on the success rate of protests before the GAO. You can view a YouTube recording of the webinar or download the slides for your review.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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