5 Things to Know When Protesting an Award

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The end-of-fiscal-year spending spike has federal agencies issuing more notices of award, leaving many disappointed offerors keen to file protests. Post-award protests are subject to strict timelines, so you need a plan if you receive an unfavorable notice of award. Below are 5 key things government contractors need to know when protesting an award.

  1. Ask yourself whether you have grounds to file a size protest or a bid protest. Generally, the strongest protest grounds pertain to:
    1. evaluation that is inconsistent with the solicitation;
    2. errors in conducting discussions;
    3. inadequate evaluation documentation; and
    4. affiliations making a company other than small.
  2. Assuming such protest grounds exist, the question then becomes where and when do you need to file your protest. Size protests are filed through the Contracting Officer and then referred to the Small Business Administration, whereas bid protests can be filed with the Contracting Officer, Government Accountability Office (GAO), Court of Federal Claims (COFC), or for procurements by the Federal Aviation Administration, Office of Dispute Resolution for Acquisition (ODRA).
  3. You must be an interested party, meaning an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.
  4. Be proactive in securing information that provides protest grounds. You should act quickly once notice of award is received. If grounds for protest are not readily available, or even if they are, you should request a debriefing. Debriefings are not required for every procurement, but you should ask for one or a brief explanation anyway. By securing this information, it will ensure that the protest is prepared more persuasively.
  5. Lastly, be mindful of deadlines to protect your ability to protest.
    1. With the Contracting Officer and GAO, you have 10 days from when you knew or should have known the basis for protest.
    2. At COFC, there is no near-term deadline, but the sooner the better.
    3. For ODRA, it’s the later of 7 days from when you knew or should have known the basis for protest, or 5 days after the debriefing.

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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