Bid Protests – The What, Who, When, and Where

Dunlap Bennett & Ludwig PLLC
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When thinking about bid protests, it is helpful to first look at the basics: what is a bid protest, who can file a bid protest, when is a bid protest filed, and where is a bid protest filed? If you are going through a bid protest, hiring a knowledgeable attorney who is experienced in this area can be beneficial in guiding you through the process.

What:  

Fundamentally, a bid protest is a written objection by an “interested party” to a host of issues pertaining to that procurement. In the most basic of terms, those issues include objections to (a) a solicitation or other request by an agency for offers for a contract for the procurement of property or services; (b) the cancelation of the solicitation or other request; (c) the award or proposed award of a contract, task order, etc.; or (d) a termination or cancelation of an award of the contract, if the written objection contains an allegation that the termination or cancelation is based in whole or in part on improprieties concerning the award of the contract.  Federal Acquisition Regulation (FAR) 33.101.

The U.S. Government Accountability Office (GAO), a common bid protest forum, describes a bid protest as “a challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.”  

Who:  

The actual person or entity that physically files a bid protest can be either the bidder or offeror itself, i.e., “pro se,” or an attorney filing on behalf of the bidder or offeror.  

Whether filed by the bidder or offeror itself or by an attorney on the bidder or offeror’s behalf, the bidder or offeror must also be an “interested party.” When the protest challenges the solicitation or its cancelation, “interested party” means a potential bidder or offeror for the procurement. When bringing a challenge against the award or potential award, “interested party” generally means an actual bidder or offeror that was not awarded the contract. GAO defines “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” 4 C.F.R. § 21.0(a). The U.S. Court of Federal Claims (COFC), another popular forum for bid protests, follows a similar standard.

When:

Generally speaking, a challenge to the terms of the solicitation, or a pre-award protest, must be filed before the due date and time for proposal submission. Sometimes a bidder or offeror may have no issues with a solicitation and will timely submit a proposal or quotation only to have the agency issue an amendment and request an amended proposal or quotation. In those instances where the amendment raises concerns or questions, the bidder or offeror must challenge the terms of the amended solicitation before the time and due date of submission of their amended proposal or quotation. To maintain its status as an interested party, the bidder or offeror must also make sure to submit its proposal or quotation by the time and due date for submission or risk losing that status and, therefore, its right to bring a bid protest.

A challenge to the award or proposed award faces a different deadline. In those instances and depending on the forum to which the bid protest will be submitted, a bidder or offeror must file within ten (10) days of the date the protester knew or should have known the basis for award. This deadline varies based on the forum, whether the protester is seeking a stay of the contract award or performance, and whether a debriefing is requested and required, and when the debriefing is offered.

In any event, the strict deadlines and complicated timeliness issues require immediate attention. 

Where:

There are three forums in which bid protests can be filed: (1) to the agency conducting the procurement; (2) to the GAO; and (3) to the COFC. Each forum has its own specific rules for the conduct of a bid protest, including varying deadlines to file the protest, what must be filed, and whether an agency is required to stay the award of a contract or the award itself.

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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