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Navigating the Bid Protest Waters

Navigating the Bid Protest Waters

Bid Protests: you either love em, or you hate em, really depends on what side of the conversation you’re on. What’s certain is that bid protests are a fact of life in today’s govcon environment.  Since the protest waters are so murky, we searched high and low to find a captain to navigate our members through the process, and boy did we find a masterful one.

Christopher Shiplett, of Randolph Law took the helm for a lunch and learn as we set sail on a journey of discovery and insight. Here’s a bit about what we learned!

“Efficient” is not a word often found in government contracting, yet…

Timing is everything when it comes to bid protests, from the overall time it takes GAO to make a decision (100 days) to the time you have to actually file a protest (10 days after the award, but actually it’s five, but then again it’s four, so that all the paperwork can get filed for a CICA stay). What we’re getting at is, timing is imperative, and you need to be certain of your actions before you make a move.

Fun fact, only 4% of bid protests successfully go through the whole entire GAO protest process, most have action taken beforehand to resolve them (positively or negatively).

So, Why Protest?

There are a few reasons why companies protest, and again, this all goes back to timing.

  • A pre-submission protest can be conducted to clarify ambiguity (but every RFP is ambiguous you say), to force an issue of requirement, or lastly to force a correction of legal error.
  • A post-submission protest can be conducted due to a lack of inclusion in an award, or if you feel the work was improperly awarded, and again, you can force a correction of legal error.

Where to Protest?

You can do this at a few different levels, depending on what kind of protest you are filing.

  • You can go straight to the agency which awarded the contract, but that’s just going to go straight to the desk of the contracting officer who awarded it in the first place, and you are unlikely to get a timely response.
  • You can take it to the GAO, this is where more than 90% of protests are sent. The clock starts to tick, and they have 100 days to resolve it (can’t all offices work this quickly?)
  • Court of Federal Claims is the most intense process and requires large amounts of time, effort and money.

What are the limitations and outcomes?

Captain’s orders- “A good protest won’t overcome a bad proposal,” so be smart folks. Shades of grey are not where you want to be playing, bid protests are only successful for black and white issues if you have the proof and data to backup your claims.

After all is said and done, and you’ve successfully won your protest, there will either be an amendment of the solicitation, a complete re-evaluation of proposals, the agency will correct their deficiency, or rarely, you will get an award of costs.

Now there’s a whole bunch of strategy that goes into play here that we won’t get into. We’ll leave that up to the captain. If you are in need of some advice, look them up at randolphlaw.com.

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