Avoiding Common Bid Protest Mistakes
Mistake 1: Confusing Bid Protests and Size/Status Protests.
Solution: Learn the Important Differences between Bid Protests and Size/Status Protests.
This is a very common area of misunderstanding. I frequently hear from my small business clients that they want to file a “bid protest” because one of their competitors for a set-aside contract does not actually meet the size or status requirements to bid on the contract. Maybe the client believes that the competitor is not, in fact “small,” or that the competitor is a “pass through” company, which is affiliated with a large company. Maybe the client thinks the competitor isn’t really controlled by that veteran or woman owner, as the regulations require. My clients will say they want to file a “bid protest” to challenge the award to the ineligible contractor-competitor. But in reality, what they want to file is not a “bid protest.”
Bid protests concern a challenge to the action taken by the agency in connection with a specific procurement – like selecting inappropriate terms for a solicitation, or the misevaluation of offerors’ proposals. In contrast, protests that focus on a competitor’s eligibility to compete as a small business or as a special status contractor – 8(a), HUBZone, Veteran Owned Small Business/Service Disabled Veteran Owned Small Business (VOSB/SDVOSB), Woman Owned Small Business/Economically Disadvantaged Women-Owned Small Business (WOSB/EDWOSB), etc. – are called size protests or status protests, and they are quite different from bid protests. Let’s break down some of the most important differences.
- First, as a protestor, you file size/status protests in a different place than you would file a bid protest. Contractors can file a bid protest with the contracting agency, the Government Accountability Office (GAO), or the U.S. Court of Federal Claims (COFC). A size or status protest, however, is filed with the contracting officer, who then forwards it to the appropriate Small Business Administration (SBA) entity in charge of that specific type of protest. Size protests are handled separately than status protests, and different types of status protests are often handled in different branches of SBA, as well. For example, if a protestor challenges both a competitor’s size, and their SDVOSB status, the size protest will proceed at the SBA Area Office while the SBA Office of Hearing and Appeals (OHA) will adjudicate in the SDVOSB status protest. If you wish to challenge a WOSB entity’s size and eligibility, you most likely need to file one size protest and one status protest, which will proceed on parallel protest tracks. Much depends on what type of eligibility you are challenging.
- Second, the deadlines to file size and status protests are different than the deadlines to file bid protests. We will be talking about bid protest deadlines in some later posts in this series; you will see the complex analysis that is required in order to calculate a bid protest filing deadline. As compared to bid protests, size and status protest deadlines are easier to calculate, but sometimes also easier to miss. If the contract is a competitive set-aside, the contracting officer is supposed to provide a notice of intent to award to a small business prior to making the award. Size and status protests must be filed within five business days after the contracting officer issues this notice. If no such pre-award notice is given, the deadline is generally going to be five days from the notice of award/bid opening. In many cases, your size/status protest deadline may fall before the applicable bid protest deadline. Plus, a debriefing has no impact on the size/status protest deadline – it does not give you extra time. Many contractors miss the size/status protest deadline waiting for a debriefing.
- Third, when filing a bid protest, the protestor should expect to participate in multiple rounds of briefing. In size/status protests, once the protest is submitted, it often up to the SBA to pursue the size/status investigation, and the protestor’s role is largely over. (Though this is, as per point one, above, somewhat dependent on the type of eligibility being challenged). In contrast, on the other side of things (i.e. if you are the contractor whose award is being protested, as opposed to the contractor who is protesting), there are major differences in terms of required contractor effort, and level of government involvement. In bid protests, though the awardee may intervene, the primary fight is between the protestor and the procuring agency. The agency steps in to defend its award decision. In size and status protests, the procuring agency does not really get involved. Rather, the burden falls on the protested entity to establish and prove its eligibility as a small and/or special status small business.
As you can see, it is critically important to recognize the differences between bid protests on one hand, and size and status protests on the other. The procedures and processes you need to follow, and – perhaps, more importantly – the deadlines you need to meet, vary greatly depending on which context you find yourself in. In some situations, when you lose out on a contract, you may have grounds to file both a size/status protest contesting the awardee’s eligibility and a bid protest challenging the agency’s award decision. An experienced government contracting attorney can be of great assistance in determining which type(s) of protest you might be able to file, or how to defend against a protest filed against you.