There is no denying that we are deep in the first protest season of the year. Every February/March, as federal government activity ramps up after the holidays, so do the bid protests. If you are currently asserting or defending a bid protest, you are certainly not alone. Unfortunately, if you are confused about the details, mechanics, and timing, of bid protests – well, you also are not alone. For the next few weeks, we will be talking on this blog about the most common mistakes contractors make regarding bid protests. Today, we’re tackling the issues surrounding certain pre-award protests. Specifically, we will be discussing how to identify, and when to file, pre-award bid protests based on challenges to the terms of a solicitation itself. (Pre-award protests in FAR Part 15 competitive range situations will be addressed in a later post).
Every year, we see contractors make the same mistake: We see these contractors confuse pre-award protests with post-award protests, wait too long to file, and lose their protest rights. This is likely because the majority of contractors are most familiar with the latter type of bid protest, those that happen post-award. (Post-award protests arise in situations where the contractor receives an unsuccessful offeror notice, or otherwise gets notice that another company has received the award the contractor was competing for.) Fewer contractors are familiar with the circumstances leading to pre-award protests – especially those challenging the terms of a solicitation – and fewer still are aware that the timeline to file such protests is different than the old post-award protest they are familiar with.
Under GAO regulations, a protest concerning alleged improprieties in a solicitation shall be filed prior to bid opening or the time set for receipt of initial proposals. In other words, if you think there is something improper about the terms of a solicitation itself (we will talk about some examples in just a moment), you need to file that protest before bids or proposals are due! If you follow the typical post-award timeline and wait until after award, you will be too late. Most likely, you will have lost your right to protest all together. Don’t make this all-too-common mistake! To avoid it, it is critically important that you learn how to identify those issues that should be challenged before submission of bids/proposals.
So what are some examples of the types of protest issues you need to raise at this stage? In short, anything pertaining to the terms of the solicitation itself. Some of the most common issues are as follows:
Sometimes it can be hard for contractors to differentiate between these types of issues relating to solicitation terms. If you have any questions, it is wise to consult an attorney and consult them early, so you can make sure to meet any pre-award deadlines.