Avoiding Common Bid Protest Mistakes
Mistake 10: Skipping the Opportunity to Intervene
Solution: ALWAYS Intervene!
Intervention is one of the most important, but least utilized, tools in a contractor’s toolbox. So, you may be asking, what is intervention in the bid protest context? Simply put, it’s a tool and a process that contractors can use to defend their award against another contractor’s bid protest. Think about the following: What if you went after a contract opportunity and (good news) got it! – but (bad news) later found out that your contract award was bid protested by a disgruntled competitor? What would you do? Many contractors think they are without options, or are unable to be involved in the protest process in this type of situation. That is not true. You can get involved; you can intervene.
Remember what we covered way back in our first protest mistakes post: 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, size/status protests focus on a competitor’s eligibility for the set-aside contract at issue. Because a bid protest technically challenges the agency’s actions in connection with the source selection, government counsel will step in to defend its actions, as well as the subsequent award decision. If the protest is at the GAO, it will be agency counsel defending the award. At Court of Federal Claims (COFC), it will be the Department of Justice, supported by agency counsel. A lot of contractors wonder: “If the government is going to step in to defend my award, why shouldn’t I just sit back and let them?” Admittedly, it is a good question. But the answer is that, if protested, you need to intervene because no one but YOU is going to protect YOUR interests.
The government is looking out for the government’s interests. Which at times can be, but will not always be, the same as yours. Though at the outset of any protest, your interests might align with those of the government – i.e. you both want the award decision to stand, and for you to keep the award – things can change quickly as protest litigation unfolds. For example, the government might be swayed that corrective action is necessary; the agency might wish to cancel your award and redo the source selection evaluation in whole or in part. Even if corrective action does not become an issue, government counsel might be new and inexperienced, or miss or disagree with an argument you think is critical to winning the protest and keeping your award. In order to have any say where the bid protest litigation goes, you have to be admitted as a party to the litigation. In other words, you must intervene.
The good news is that intervention is possible at the GAO and at the COFC, and is pretty quick and easy to do. A couple quick filings, getting admitted to the case and to any applicable protective order, and you are in. After that, it is up to you and your legal team how much effort (and legal fees) you want to expend. The key, though, is that once you intervene, you have your foot in the door and therefore have the ability to make that decision. Without it, you are left in the dark, waiting weeks if not months to hear from the government about whether they canceled your award or not.
After intervening, you can monitor filings, and your counsel can discuss strategy with government counsel. You can modulate legal efforts depending on how convincing the protestor’s arguments are, and how well you believe government counsel has the situation handled. It might be that, in your case, the government counsel is knocking it out of the park. In that case, you can sit back and let them; join in their briefs rather than write your own and, as a result, legal costs stay comparatively small. But even with so little effort spent, you have peace of mind, knowing how the case is going and the likelihood of success. You can plan accordingly in terms of staffing, budget, and BD pipeline. In other cases, you may need to take a laboring oar, drafting supplemental briefs to cover critical arguments that you feel government counsel misses or covers insufficiently.
Best practice is to intervene as soon as possible after you receive notice of the protest. This allows your attorney to be part of the discussion with government counsel concerning potential motions to dismiss. That happens very quickly, usually within the first few days after protest filing. You absolutely want to be in the litigation, and admitted to any applicable protective order, by the time the agency record/report (AR) is circulated. The AR will contain a CO statement and legal memorandum, which explains the government’s response and rebuttal to the protestor’s arguments. Both the intervener and the protestor are then allowed to respond, and file additional briefing outlining their position. This is your time to hit anything and everything you think the government missed.
With regard to the kinds of defenses you can raise, there are all sorts. You might argue for dismissal based on the protestor’s failure to timely file (you will remember from our previous posts how tricky it is to properly calculate bid protest deadlines), or on the basis that the protest is pure speculation. You might be able to raise arguments about jurisdiction, standing, or prejudice (all of which we have discussed in prior posts, along with how to spot losing protest arguments). The key is to find anything you can to defeat the protest and keep your award.
Though this Bid Protest Mistakes series has been focused on bid protests, I do want to offer one critical clarification regarding size and status protests, and that is: Everything I said above pertains to bid protests only. Remember that, unlike bid protests, size and status protests do not allege that the government did anything improperly. Accordingly, government counsel does NOT step in to defend the award. The key issue(s) in size and status protests relate to the eligibility of the awardee. Which means, if you are an awardee whose eligibility is challenged, the government is not coming to help you. It is on you – and you alone – to defend your eligibility and keep your award.
If you have questions about bid protest intervention, or size/status protest defense, consult a legal professional.