Avoiding Common Bid Protest Mistakes
Mistake 9: Not Realizing When Protestors Get Additional Bites at the Apple.
Solution: Understand the Forum Options, and When You Get A Second (or Third) Chance to Protest
For those of you familiar with bid protests, you might remember that protestors generally have three options concerning where to file: the agency; the GAO; and the COFC. There are many considerations that should go into selecting the forum in which you want to file: availability of the automatic stay; price; timing; existence/number of additional protestors, etc. One additional thing you might want to keep in mind – and discuss with your attorney – is what other options you might have, post-protest, should the decision not go your way. Many contractors don’t realize that you sometimes have the option to seek resolution in multiple fora.
Specifically, if you first file your protest at the agency, if the agency does not find in your favor, you may be able to file your protest at GAO. The GAO rules provide that:
If a timely agency-level protest was previously filed, any subsequent protest to GAO must be filed within 10 days of actual or constructive knowledge of initial adverse agency action, provided the agency-level protest was filed in accordance with [GAO protest deadline rules] unless the agency imposes a more stringent time for filing, in which case the agency’s time for filing will control. In cases where an alleged impropriety in a solicitation is timely protested to an agency, any subsequent protest to GAO will be considered timely if filed within the 10-day period provided by this paragraph, even if filed after bid opening or the closing time for receipt of proposals.
Note, however, that while this gives the agency-level protestor a “second bite at the apple” at GAO, it still raises several questions and issues that the protestor must keep in mind and address. First, the initial agency protest must have been filed in accordance with GAO deadline rules, which means that GAO rules need to be taken into account even before the agency level protest is filed. Second, what constitutes “initial adverse agency action” may be somewhat complicated, and should be evaluated on a case-by-case basis. Third, pursuing an agency protest does not extend the time for obtaining a stay at GAO, so the repercussions of that must be kept in mind.
This is not the only chance a protestor gets to seek additional review of a protest that did not go its way. A protestor that files a protest at the GAO but does not succeed on that protest may thereafter bring its protest to COFC. Note that, contrary to what some contractors think, this is not an “appeal” of the GAO decision. Rather, the COFC has separate and independent statutory authority under 28 U.S.C. § 1491(b)(1) to adjudicate bid protests. The protest to COFC is treated as a new protest filing. While the GAO decision will be considered, it is neither binding on the COFC nor reviewed for “clear error” only. The GAO decision will likely become a part of the administrative record, but protestors must be very careful, when using information obtained during a GAO protest under protective order, not to violate that protective order. I have seen attorneys sanctioned for making this mistake.
Finally, as with other COFC decisions, a COFC ruling on a bid protest may be appealed to the United States Court of Appeals for the Federal Circuit.
Taken together, this means that a protestor might, in certain situations, have the right to try and pursue its protest in several different fora. This is good news for protestors who need additional options to pursue a legitimate protest. As a practical matter, though, you should never pursue a protest – let alone multiple rounds of protest litigation – on a whim. You must ensure that your protest is in fact a strong one, based on objective arguments and not mere disagreement with agency judgement (see this previous post for a recap on this topic), and that you are not simply throwing some arguments at the wall to see what sticks. The last thing any contractor needs is to develop a reputation for pursuing frivolous bid protests. This includes those incumbents who use these multi-tiered review options to drag out the award process and prolong existing contracts or bridge contract just to get a couple of months additional revenue. The government does not appreciate that type of waste of agency and judicial resources.
The key is to consider all your forum options, and the path you want to follow, before filing anything at all. If you have questions about how to do this, consult with a legal professional.