- Posted on: Aug 20 2021
A pre-award protest can be a useful tool to address issues in the procurement process before evaluation and award. In some cases, if no pre-award protest is filed, the issue will be waived. This blog explores where pre-award protests should be filed, potential grounds for protest, the time for filing, and the potential value in filing to your company.
The Forum 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 pre-award bid protests. While the COFC can hear pre-award protests, the majority are filed at the agency level or at GAO.
The issue(s) being raised and the particular circumstances surrounding the specific procurement in question are key considerations when choosing where to file. For instance, if the solicitation contains an incomplete term and you have not been able to resolve the issue with the contracting officer, an agency level protest might be the best and most inexpensive option. If, however, the protest is against an agency’s intended sole source award, GAO might be a better place to file.
Pre-award Protest Grounds
Perhaps the most common pre-award protest ground is to protest defects in the solicitation specifications or terms. This includes conflicting terms, ambiguities that are apparent on the face of the solicitation, or incomplete terms. For example, the solicitation states offerors need to include resumes for all key personnel, but elsewhere states resumes must be included for all personnel, whether proposed as key or not. That needs to be cleared up before proposals or quotations are submitted.
Another common ground of pre-award protest is against an offeror’s improper exclusion from the competition. This can happen where the offeror is excluded from the competitive range, the process by which the Federal Acquisition Regulation (FAR) allows an agency to pare down a large pool of offerors into only those proposals with a reasonable chance of receiving award and to exclude others from the competition. This can happen where an offeror’s proposal is determined to be technically unacceptable, and thus the offeror is no longer considered in the competition.
A further common ground of pre-award protest is to protest the agency’s failure to use competitive procedures and the agency’s intention to award a contract on a sole source basis.
The Time for Filing
Essentially all three forums have the same timeliness requirement for pre-award protests against any improprieties in the solicitation – the protest must be filed before the closing date set for receipt of proposals. Where protest grounds that could have been raised before the closing date set for receipt of proposals are not filed, they are waived.
Agency level and GAO pre-award protests against improper exclusions and improper sole source awards must be filed no later than 10 days after the basis of the protest is known or should have been known. There are some exceptions when the agency conducts a pre-award debriefing.
The COFC does not have strict filing deadlines in these instances. A note of caution, however, while the COFC does not have strict filing deadlines, that does not mean a protester can sit on its rights and wait to file. Waiting to file can affect a protester’s ability to show harm, a necessary requirement for injunctive relief, and can also affect the prejudice to the parties, thus decreasing your chances of success.
Increasing Your Competitiveness
A pre-award protest can be a useful tool in helping your company become or foster its competitiveness. Pre-award protests:
- Against improprieties in the solicitation can help clarify agency requirements in a way that assists your company in writing a proposal that addresses the agency’s needs and shows a clear understanding of those needs.
- Against improper exclusion can also put your company back in the competition.
- Against an improper intended sole source award can inform the agency of your abilities and force the agency to use competitive procedures.
Do you have questions about filing a pre-award protest? We can help answer those questions and plot your strategies. Contact us by calling 800-747-9354 or by emailing firstname.lastname@example.org. We can help you assess the issues and determine if filing a bid protest is right for you.
To learn more about bid protests, visit our Bid Protest Lawyer page.
To learn more about bid protests, click here, or contact our Government Contracts partner lead below:
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.
Tagged with: bid protests
Posted in: Government Contracts