Avoiding Common Bid Protest Mistakes
Mistake 2: Being Unable to Properly Identify Pre-Award Protests, and Their Deadlines.
Solution: Learn to Identify Pre-Award Protests, Which Must Be Filed Before the Solicitation Response Deadline, the Issues that Trigger Them, and When to File.
Every year, I see contractors make the same mistake: I see these contractors confuse pre-award protests with post-award protests, wait too long to file, and lose their protest rights. This is likely because the majority of contractors are most familiar with the latter type of bid protest, those that happen post-award. (Post-award protests arise in situations where the contractor receives an unsuccessful offeror notice, or otherwise gets notice that another company has received the award the contractor was competing for). Fewer contractors are familiar with the circumstances leading to pre-award protests – especially those challenging the terms of a solicitation – and fewer still are aware that the timeline to file such protests is different than those old post-award protests they are used to.
Under GAO regulations, a protest concerning alleged improprieties in a solicitation must be filed prior to bid opening or the time set for receipt of initial proposals. In other words, if you think there is something improper about the terms of a solicitation itself (we will talk about some examples in just a moment), you need to file that protest before bids or proposals are due! If you follow the typical post-award timeline and wait until after award, you will be too late. Very likely, you will have lost your right to protest all together. Don’t make this all-too-common mistake! To avoid it, it is critically important that you learn how to identify those issues that should be challenged before submission of bids/proposals.
So, what are some examples of the types of protest issues you need to raise at this stage? In short, anything challenging the terms of the solicitation itself. Some of the most common issues are as follows:
- Ambiguity in the solicitation terms or contradictory provisions. If you think the terms are vague, confusing, or in conflict with one another, protest now! Of course, if there is an opportunity to ask questions of the agency, by all means avail yourself of that first. But keep an eye on the calendar and make sure you leave yourself enough time to get a protest in before the date for bid/proposal submission.
- Exclusion of a required provision, or inclusion of a term or provision that should not be there. These are also common bases for pre-award protests. (We have all seen governmental cut and paste errors, right?) For example, if you are a HUBZone company and you notice that the agency should have, but did not, include the HUBZone preference provision, don’t wait until the agency improperly evaluates offerors’ prices and gives the award to another offeror. You need to protest early! Same story if you see the government inserted the wrong Changes Clause, or another important clause is missing. Do a thorough review of the solicitation and look out for those provisions that will be required for successful performance (and dealing with issues arising during same), not just those that are important at the proposal stage.
- The agency’s use of “unduly restrictive” terms. This is another big one. While federal agencies have a lot of discretion in selecting the evaluation criteria they will use to evaluate and compare offerors, that discretion is not unfettered. If the agency structures a solicitation in a way that restricts competition, and the agency cannot explain why such restrictions are necessary to meet the agency’s legitimate needs, that is protestable as unduly restrictive. If you can show that the agency’s restrictions serve no legitimate purpose, the agency may ultimately need to go back to the drawing board and revise its evaluation criteria. So, if you think that the terms of a solicitation are unduly restrictive and therefore impair your ability to compete or put you at an unfair disadvantage as compared to your competitors, protest it!
- Protests dealing with “rule of two” or set-aside issues. These are sometimes called, in the SDVOSB context, “Kingdomware protests”. They are another type of challenge that should be raised before submitting bids/proposals. The decision to set-aside a procurement is considered a term of the solicitation and, is in any event, is something that is evident on the face of the solicitation. If you think the agency made a mistake in setting aside (or not setting aside) a procurement, raise it early.
- Challenges based on an agency’s allegedly improper use of Lowest-Priced, Technically Acceptable (LPTA) procedures. This is also something you want to protest pre-award. Recent regulatory changes limit the government’s use of LPTA. Undoubtedly, as the industry gets accustomed to these new limitations, there will be solicitations that include LPTA-type procedures when they shouldn’t. This would be an appropriate basis for a pre-award protest.
- Failure to Follow Applicable Small Business Regulations. Though the Small Business Regulations may not be relevant for every procurement or every bid protest (though they are certainly at the heart of size/status protests), they can at times become pivotal. For example, if the regulations specify how the past performance of a small business joint venture must be considered, and the evaluation criteria set forth in the solicitation make it clear that the agency plans to evaluate past performance in a way that is inconsistent with that, that is protestable. Or, let’s say the contract is set aside for small business, but the technical requirements say that the offerors must have performed a certain percentage of work on a certain number of contracts, each over a certain dollar threshold, in the past three years; when you crunch the numbers, any company who actually did that amount of work would be over the applicable size standard. That’s a problem, so speak up now!
Sometimes it can be hard for contractors to differentiate between these types of matters relating to solicitation terms. Learn to spot the issues. If you have any questions, it is wise to consult an attorney and consult them early, so you can make sure to meet any pre-award deadlines. Do NOT roll the dice. Don’t wait to see how the evaluation shakes out and try to protest the award only if it doesn’t go your way. By then it will most likely be too late. Act on these ones fast, or forever hold your peace.