Protests: Timing Is of The Essence

by PilieroMazza PLLC

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.

© PilieroMazza PLLC | Attorney Advertising

Written by:

PilieroMazza PLLC

PilieroMazza PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.