By: Mary Pat Buckenmeyer

A post-award protest, in its simplest of terms, is a written objection to the award of a contract. This blog explores where post-award protests can be filed, potential grounds for protest, and the time for filing.

The Forums for Filing:

All three of the bid protest forums – the procuring agency, the U.S. Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC) – have jurisdiction to hear post-award bid protests. While the GAO is the most popular forum to bring post-award protests, there are strategies in bringing a protest at any of the three forums.  

The issue(s) being raised, the outcome desired, and the particular circumstances surrounding the procurement in question are key considerations when choosing where to file. For instance, if there is a glaring error in the agency’s evaluation that can be easily remedied, an agency level protest might be the most appropriate and least costly forum for quick resolution of the issue.  

Sometimes, however, the issue is more complicated, or it does not make sense to have the procuring agency essentially review its own actions as it would in an agency level protest. In either of those instances, GAO or the COFC may be a more appropriate forum. Both GAO and the COFC have developed extensive case law interpreting a whole host of protest grounds. While neither forum is required to follow decisions from the other, both forums do give the decisions of each due consideration. Moreover, the GAO attorneys and COFC judges handling the cases often have specialized knowledge of bid protests and related issues.  

As explained in more depth in other blogs, sometimes a protester is left with little choice where to file given the strict and complicated timeliness considerations for filing a bid protest. Agency level and GAO pre- and post- award protests must be filed within specific timeframes to be heard. The COFC follows similar deadlines for pre-award protests but does not include strict deadlines for post-award protests (as cautioned in other blogs, however, this can impact prejudice and harm to the protester, both essential considerations of a COFC bid protest). Where the deadline to file at the agency level or GAO has passed, sometimes a protester can still file a bid protest at the COFC.

Post-award Protest Grounds:

There are numerous grounds that can be raised in a post-award protest. The following lists some of the more common grounds, including protests alleging:

  • The award is an improper sole source award,
  • The agency failed to properly evaluate proposals or quotations in accordance with the Federal Acquisition Regulation (FAR) and the terms stated in the solicitation (Note:  This ground can be raised for any technical, management, key personnel, past performance, or cost/price factors),
  • The agency failed to properly conduct discussions (including a lack of equal discussions, lack of meaningful discussions, improperly conducted discussions with only one offeror after close of discussions, etc.),
  • The agency failed to consider an organizational conflict of interest (biased ground rules, impaired objectivity, and unequal access to information),
  • The agency failed to properly conduct its tradeoff analysis and best value determination,
  • The agency treated offerors in a disparate manner, and
  • Bias or bad faith on the part of the agency.

            Do you have questions about filing a post-award protest? We can help answer those questions and plot your strategies. Contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.  We can help you assess the issues and determine what strategy is right for you.

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


             

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            Posted in: Government Contracts

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