Welcome, dear readers, to the height of protest season! Around the end of the federal fiscal year, the number of contract awards being made increases greatly. Which means so do the number of protests challenging those award decisions. If you are currently asserting or defending a protest (or think you will be before October is over), you are certainly not alone. Unfortunately, if you are somewhat confused about the details, mechanics, timing and procedures relating to protests—well, you also are not alone. This is undoubtedly one of the most complex and confusing areas of government contracting. But fear not! We’re here to help clear up the confusion and get you on the right track, to ensure you obtain those awards improperly awarded to a competitor and maintain those awards that you fairly won. To that end, below is a summary list of the 10 most common bid protestor mistakes, with links to more detailed information about each mistake and how to avoid it!
Mistake 1: Confusing Bid Protests and Size/Status Protests. One mistake that many contractors make is not recognizing the difference between bid protests on one hand and size/status protests on the other hand. The former challenges agency action during the procurement process; the latter challenges the awardee’s eligibility for a contract. Different rules and regulations, deadlines and procedures, apply for each, so it is critical for contractors to understand which world they are operating in if they want to succeed. To that end, we’ve put together a quick post outlining how to identify which types of arguments go into what type of protest.
Mistake 2: Being Unable to Properly Identify Pre-Award Protests and Their Deadlines. Most contractors think that all protest action happens after award. Not true! There are several different contexts in which protesting requires a contractor to act much earlier in the procurement process. Protests concerning alleged errors in the solicitation are one of these contexts. The key is to spot the types of issues that need to be protested at this stage and understand when the appropriate time to file protest is. Learn how to do that here.
Mistake 3: Failing to Act When Excluded from the Competitive Range. This is another situation in which a contractor must act before award. A notice of exclusion from the competitive range is the trigger to ask for a debriefing. You don’t want to wait until later in the process or you will limit or altogether lose the ability to challenge an award decision. If you have questions about what the competitive range is, or how to preserve your protest rights if you are excluded from the competitive range, read this!
Mistake 4: Thinking That the Exception Is the Rule When It Comes to GAO Bid Protest Filing Deadlines. Many contractors think the GAO deadline to file a post-award protest is “10 days from the date of the debriefing.” But that is not actually the rule. That is the exception to the rule. It is critically important for contractors to understand what the rule itself is, and how to determine if it is that rule—or its better-known exception—that is applicable to their individual circumstances on a specific procurement. Otherwise, it is extremely likely they will miss a filing deadline. Need to know more? Check out this post.
Mistake 5: Misunderstanding the Debriefing Process, What Information You Do and Do Not Get, and What Impact a Debriefing May Have on Deadlines. Debriefings can be a great way to gather information for a protest—but only if you understand when you are actually entitled to a debrief, what information the agencies are required to give you, what information the agencies are prohibited from giving you, and how to adequately prepare. It is also vital for contractors to understand under what circumstances they have enhanced debriefing rights, what that means about the information they can get from the agency, and the impact on the protest filing deadlines. All this is covered in more detail in this post.
Mistake 6: Failing to Identify Minimum Task Order Protest Thresholds. Sad but true, not all Task Order awards can be protested. And even those that can be protested have to be protested in one particular forum, as opposed to having three protest filing options. There are dollar thresholds for these Task Order protests, and the thresholds differ depending on what agency you are dealing with. We provide a summary of these thresholds and related considerations here.
Mistake 7: Not Demonstrating Prejudice. Not just anyone can file a bid protest. Protestors must have “standing” to file. Standing requires that a protestor, among other things, establish prejudice. They also have to establish competitive prejudice—in other words, that the award decision would have actually turned out differently had the alleged error been corrected. This can be a tricky area to navigate, but it is essential to avoiding protest dismissal. Learn more here.
Mistake 8: Holding ’Em When You Should Be Folding ’Em. Not all protests are created equal. Some protests are slam dunk winners. Some are certain to be dead in the water. The vast majority are somewhere in between. Assessing your likelihood of success is something that should be done early, and often, when protesting. There is zero utility in spending your valuable time, and attorney’s fees, on a protest that doesn’t give you a substantial chance at award when it is all over. This post provides some more insight on how to craft winning protest arguments and how to identify and avoid relying on losing protest arguments.
Mistake 9: Not Realizing When Protestors Get Additional Bites at the Apple. Protestors have different options about where to file a bid protest: agency, GAO, and COFC. Depending on where they start, they might get additional opportunities to try again in a different forum. This is something protestors should discuss at length with their attorneys, but we lay out some considerations for discussion here.
Mistake 10: Missing the Opportunity to Intervene. Thus far, we have been focused on the protestor’s side, but what if you are the protested party, as opposed to the protestor? What if you won an award and now a competitor has filed a bid protest seeking to have that award taken away? Contrary to what many contractors think, you are not without options in this situation. Though the procuring agency will step in to defend the award, you, as the awardee, can and should also get involved through a process called intervention. More on the best practices for intervention can be found in this post.
Follow these tips and you should be able to avoid the common pitfalls many contractors fall into in the bid protest world. However, if you need additional guidance, you should reach out to a legal professional with bid protest experience. Happy end of fiscal year, and a successful protesting season to all!