Bid Protests – Who Can Intervene if I File a Protest, and When Can I Intervene if I’m the Awardee and a Protest Has Been Filed Against the Award?

By: Mary Pat Buckenmeyer 

Intervening in a bid protest case serves several purposes, and knowing these purposes and who can intervene will assist you in developing strategies to defend an award, protect company proprietary and confidential information, advance your company’s interests, and advocate for your company. If you have questions about intervening in a bid protest, an experienced attorney can help assist you in the process.

Of the three bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) – intervention is only allowed at the GAO and COFC. There is no intervention at the agency-level.

The Meaning of “Intervenor”:

An intervenor in a bid protest in the most basic of terms is the awardee if the award has been made. When no award has been made, an intervenor can be a party with legal standing who is permitted to and has a right to appear in the bid protest case.  

GAO defines “intervenor” as “an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.”  4 C.F.R. § 21.0(b)(1). GAO’s Bid Protest Descriptive Guide explains that generally, if the award has been made, GAO only permits the awardee to intervene. In those instances where the award has not yet been made, GAO will consider a request to intervene from a bidder or offeror who appears to have a substantial prospect of receiving an award if the protest is denied. GAO further notes that intervention in a pre-award protest is generally the exception, not the rule.

The COFC Rules do not define “intervenor,” but the concept is generally the same as at GAO. The COFC Rules 24(a)-(b) allow for two types of intervention: (1) of right and (2) permissive. Intervention of right is allowed where the intervenor can show its interests relate to the property or transaction that is the subject of the proceedings, and its interests are so situated that disposition of the action may impair or even impede its ability to protect that interest. Permissive intervention is allowed where, on a timely showing, there is an unconditional right to intervene by a federal statute, or there is a claim or defense that shares with the main action a common question of law or fact, and where intervention will not delay or prejudice the adjudication of the original parties’ rights. If you have questions about intervening in a bid protest, a knowledgeable attorney can help you navigate the journey.

How to Intervene:

At the GAO, a request to intervene is a simple letter that includes an intervenor’s or the intervenor representative's:

  • Name,
  • Street Address,
  • Email address,
  • Telephone and fax numbers, and
  • A statement of the intervenor’s status.  

At the COFC, a request to intervene is made by a formal motion meeting the requirements for a motion and the elements required for a showing of intervention of right or permissive intervention.

Reasons to Intervene:

There are numerous reasons to intervene, including, but not limited to:

  • Protecting proprietary/confidential information,
  • Defending your award, especially where your interests may not be the same as the agency’s interests,
  • Limiting the record produced,
  • Providing supplemental legal support to an agency, for instance, by providing assistance with research or arguments in response to discrete protest issues,
  • Discourage or shaping corrective action,
  • Monitoring developments in the procurement,
  • Providing further support to agency arguments, or a different perspective,
  • Protecting your business reputation,
  • Before the COFC, intervention will assist you in specifically articulating harms to your company the agency may not advance.

Do you have questions about whether you can intervene and if you should? We can help answer those questions. Contact Dunlap Bennett & Ludwig by calling (800) 747-9354 or emailing clientservices@dbllawyers.com.

To learn more about bid protests, visit our Bid Protest Lawyer page.


About the Author

Mary Pat Buckenmeyer headshot

Mary Pat Buckenmeyer is a partner at Dunlap Bennett & Ludwig. Mary Pat’s practice focuses on government contracts area with clients ranging from large defense contractors to small start-up contractors.

Mary Pat’s government contracts law experience includes a range of issues, including contract claims and disputes, compliance, counseling, requests for equitable adjustment, small business issues, size protests and appeals, Freedom of Information Act matters, contractor responsibility and integrity issues, prime-subcontract disputes, teaming agreements, joint venture agreements, non-disclosure agreements, and review of prime and subcontracts, contract terminations and settlement proposals, debarment and suspension, cost and pricing issues, and overseas contracting.

To learn how Ms. Buckenmeyer can assist with your legal needs, click here.


 

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