Imagine being a small business and spending countless hours putting together a proposal for a government contract, only to find out that the contract has been awarded to another company. As a small business owner, losing a contract can be a major setback. But what if the award decision was unfair or incorrect? That’s where bid protests come in. This blog explores the ins and outs of bid protests for businesses and how they can help you fight for a fair chance in the government contracting arena.
According to U.S. Government Accountability Office (GAO), “A bid protest is a challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.”
A bid protest is a legal challenge to the award of a government contract. The protest is usually filed by a bidder who believes that the procurement process was not carried out in accordance with the law or that the winning bidder was awarded the contract based on factors other than the lowest price or best technical solution.
Why File a Bid Protest?
Bid protests are filed when a contractor believes that a government agency has made an unfair decision in the bidding process for a contract. The discrepancy can be in the evaluation of bids, the award of the contract, or the issuance of specifications or requirements for the project. Contractors may file bid protests to challenge the award of a contract to another company, to ask for a reconsideration of their bid, or to raise concerns about the overall bidding process.
Before filing a bid protest, a contractor should consider the following:
- Was a bid awarded to a large enterprise reserved for a set-aside?
- Was the bid compliant with the agency’s instructions?
- Was the technical and management approach robust?
- Was a strict process while responding to the bid followed?
- Were key personnel proposed as per the agency requirements?
The goal of a bid protest is to have the government agency review its decision and correct any errors or irregularities that were made during the bidding process. This can help ensure that the contract is awarded fairly and in accordance with procurement regulations. In some cases, a successful bid protest can lead to the cancellation of the contract award and the re-evaluation of bids.
It’s important to note that bid protests are a legal process and must be filed within strict time frames and in accordance with specific regulations. Contractors should carefully consider the grounds for their protest and consult with legal counsel before filing a bid protest.
Types of Bid Protests
There are several types of bid protests that a contractor can file, including:
- Pre-Award Protests: These protests are filed before the award of a contract and challenge various aspects of the bidding process, such as the solicitation of bids, the evaluation criteria, and the issuance of specifications.
- Post-Award Protests: These protests are filed after the award of a contract and challenge the award itself, the selection of the winning bidder, or the terms and conditions of the contract.
- Size Protests: These protests are filed by small businesses to challenge the size classification of a company that has been awarded a contract.
- Sole Source Protests: These protests are filed when a company challenges the award of a contract to a single supplier without competitive bidding.
- Procurement Integrity Protests: These protests are filed when a company alleges that a government procurement official engaged in misconduct or violated procurement regulations during the bidding process.
How to File a Bid Protest?
The specific process for filing a bid protest can vary depending on the jurisdiction and type of procurement, but here is a general overview of the steps involved:
- Review the Procurement Regulations: Contractors should familiarize themselves with the procurement laws and regulations that apply to the specific procurement they are protesting. This will help them identify any potential violations and strengthen their protest.
- Gather Evidence: Collect documents, emails, and other evidence supporting contractor protest. This may include the RFP, the bid, and any correspondence with the government agency.
- Determine the Appropriate Forum: Determine the appropriate forum for filing the protest. Depending on the jurisdiction, contractors may file a protest with the government agency, the General Accounting Office (GAO), the Court of Federal Claims, or the Local Board of Contract Appeals.
- File a Protest: File a protest in accordance with the procedures set forth by the appropriate forum. This may involve submitting a written protest, providing evidence and arguments, and paying the required fees.
- Await a Decision: After filing a protest, the appropriate forum will review the contractor’s complaint and issue a decision. The timeframe for a decision can vary but typically ranges from several weeks to several months.
Where to File a Bid Protest?
Generally, bid protests can be filed with the following entities:
- Federal Government: Bid protests involving federal contracts can be filed with the Government Accountability Office (GAO) or the appropriate agency’s Office of the Inspector General (OIG). The GAO is the primary forum for bid protests of federal contracts, and it typically has 100 days from the date of filing to issue a decision.
- State and Local Government: Bid protests involving state and local contracts may be filed with the appropriate state or local procurement office, the state attorney general’s office, or a state court. The specific rules and procedures for filing a bid protest can vary by state.
Examples of a Bid Protest
- In 2020, a small business called IT Objects LLC filed a protest with the GAO after it was excluded from the competitive range for a Department of Health and Human Services contract for information technology services. IT Objects claimed that the agency improperly evaluated its proposal and did not follow the evaluation criteria set out in the solicitation. The GAO sustained IT Objects’ protest and recommended that the agency reevaluate proposals and make a new award decision. After the reevaluation, IT Objects was ultimately awarded the contract.
- On November 22, 2022, Washington, D.C.-based Blue Rose Consulting Group, Inc. (Blue Rose), a HUB Zone Small Business concern, objected to the terms and conditions of the General Services Administration’s (GSA) request for proposals (RFP) No. 47QTCB22R0006 for the HUBZone pool of the Polaris Governmentwide Acquisition Contract (GWAC), to provide specialized information technology (IT) services and services-based solutions. Blue Rose deemed the clause in the RFP that deals with taking into account the skills of subcontractors was too anti-competitive. Because the issue at hand was the subject of litigation before a court with appropriate jurisdiction, the Government rejected the protest.
Benefits and Challenges of a Bid Protest
The benefits of bid protests include the following:
- Encouraging fair competition
- Ensuring compliance
- Opportunity for corrective action
- Reducing legal disputes
Overall, bid protests help ensure the government procurement process is fair, transparent, and compliant, benefiting government agencies and contractors.
The challenges of a bid protest include the following:
- Strict Deadlines: Bid protests typically have very tight deadlines for filing, which can be challenging for parties to meet.
- The Burden of Proof: The protester must prove that the procurement process was flawed or unfair, which can be difficult.
- Cost: Bid protests can be expensive, particularly if legal representation is required.
- Risk of Damage to Business Relationships: Filing a bid protest can strain business relationships with the contracting agency and other vendors.
- Uncertainty: Bid protests can result in delays and uncertainty in the procurement process, which can impact the ability of the contracting agency to complete the project on time and within budget.
- Limited Remedies: Even if a bid protest is successful, the available remedies may be limited to re-evaluating the procurement process or a new procurement competition rather than a direct award to the protesting party.
In conclusion, a bid protest can be a powerful tool for contractors who feel the procurement process is flawed or unfair. While lengthy and complex, it can lead to more transparent and fair competition for government contracts. Contractors must consider the grounds for a protest and follow the relevant regulations’ procedures and deadlines. By doing so, contractors can protect their interests and ensure the procurement process remains open and competitive. At iQuasar, our team can assist you in gathering data points, debrief notes, and other documentation that can help you and your legal team during the bid protest process.