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Bar Journal 2018

Protesting Federal Procurement Actions

By Eric Underwood

Your client, a small business owner, pays you a visit immediately after he learns the proposal he submitted for a multiyear, multimillion dollar federal construction project was not selected for contract award.

Visibly downtrodden, your client explains to you that the future of his business was heavily dependent on winning this particular contract. Given these high stakes, and with certainty that his bid was competitive among those submitted, your client, who has never protested a federal procurement action, asks for your advice regarding how to protest and whether he should protest the award. Below is an analytical framework containing the salient information you will need to properly advise your client.

‘PROTEST’ DEFINED
A “protest” is “a written objection by an interested party” to one of a number of enumerated procurement actions, including the award of a contract.1 Given that your client has expressed concern over a contract award, his concern is one that may be protested.

STANDING
Only interested parties may file a protest.2 An interested party is “an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.”3 Typically, prior to contract award, any prospective bidder qualifies as an interested party.4 Conversely, after contract award, offerors who actually submitted bids or proposals are interested parties, as only those offerors were eligible for award.5 Since your client submitted an offer that was eligible for award, he has standing to protest the award.

REASONS TO PROTEST
Offerors protest federal contracting actions for a variety of reasons. As relevant to your client’s inquiry, protests often stem from an offeror’s belief that the government made a material error during the bidding process.6 Commonly cited errors include “poorly written or vague contract requirements, failure to follow the process or [evaluation] criteria laid out in the request for proposals, and failure to adequately document government findings.”7 An unsuccessful offeror might also protest if the procuring agency did not debrief the offeror after contract award.8 This can create the perception that the procuring agency treated the contractor unfairly during the award process and, as a result, often invites offerors to protest simply to gain access to information that would otherwise become known during a debriefing.9 Importantly, however, the government is only required to provide a debriefing upon an unsuccessful offeror’s timely request, so the onus to initiate a debriefing is on the offeror.10

With that said, your client should absolutely request a debriefing, and he must do so within three days of being notified of the contract award.11 During a debriefing, the government must disclose, at a minimum, the following:

1) The government’s evaluation of the significant weaknesses or deficiencies in the offeror’s proposal, if applicable;

2) The overall evaluated cost or price (including unit prices) and technical rating of the successful offeror and the debriefed offeror, and past performance information on the debriefed offeror;

3) The overall ranking of all offerors, when any ranking was developed by the procuring agency during source selection;

4) A summary of the rationale for award;

5) For acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and

6) Reasonable responses to relevant questions about whether source selection procedures contained in the solicitation, applicable regulations, and other applicable authorities were followed.12

Sometimes, if a protestor is able to establish a rapport with the individual conducting the debriefing (typically the contracting officer), he may receive through informal questioning additional information beyond the scope of the statutory requirements. In any event, upon completion of the debriefing, your client will have significantly more information at his disposal in determining whether filing a protest is worth the time and expense.

THE MECHANICS OF A PROTEST

The procuring agency, the Government Accountability Office (GAO) and the Court of Federal Claims have concurrent jurisdiction over bid protests. While there are several factors to consider in determining the proper forum to file a protest, suffice it to say that protests to the GAO typically strike the best balance between the protestor’s desire for an independent review of the procuring agency’s decision with the interest of resolving a protest in an efficient and economical matter.13 Moreover, GAO decisions are widely published, thus increasing the predictability of protest outcomes.14 The most significant drawback of protesting to the GAO is that, as a legislative agency, the GAO cannot constitutionally compel executive agencies to implement its recommendations.15 Nevertheless, procuring agencies usually implement GAO recommendations.16

Assuming that filing a protest with the GAO makes the best sense in your client’s case, initiating the protest is relatively simple. To initiate a protest to the GAO, the protestor must submit to the GAO a notice that: 1) identifies the contracting agency and the solicitation or contract number; 2) lists the legal and factual grounds of protest; 3) establishes that the protestor is an interested party; and 4) states the relief requested (e.g., termination or re-competition of a contract).17 Beyond these requirements, “[n]o formal briefs or other technical forms of pleading or motion are required.”18 Notwithstanding the simplicity of initiating a protest, the required efforts of the protestor become more significant after the procuring agency submits its “agency report” to the GAO, to which the protestor must submit comments within 10 days of receipt of the “agency report.”19 This can involve a significant amount of effort over a short period of time and, if the protestor fails to submit its comments on time, the GAO may dismiss the protest. Moreover, the GAO may conduct a hearing as part of its effort to resolve the protest, which could demand additional effort from you and your client.20

PROTEST DISPOSITION
The GAO may dismiss, deny or sustain a protest.21 The GAO ordinarily dismisses protests containing procedural defects such as: 1) failure to address all requirements of 4 C.F.R. §21.1 or 2) untimely filing.22 Similarly, if the GAO finds that the procuring agency complied with procurement statutes or regulations, it denies the protest.23 In either case, the procuring agency may proceed with its procurement once the GAO announces its decision.24 Conversely, if the GAO determines that the procuring agency violated procurement regulations, it sustains the protest and recommends that the agency implement one or more of the following remedies: refrain from exercising options under the contract; terminate the contract; re-compete the contract; issue a new solicitation; award a contract consistent with statute or regulation; or such other recommendation(s) as GAO determines necessary to promote compliance.25 Additionally, the GAO may recommend that the procuring agency reimburse the protestor for its costs of “(1) [f]iling and pursuing the protest, including attorneys’ fees and consultant and expert witness fees; and (2) [b]id and proposal preparation.”26

WHAT ARE THE CHANCES OF ULTIMATELY GETTING THE CONTRACT?
Now that your client has a better understanding of the protest process, he asks you, “If I protest, what are my chances of ultimately winning the contract?” Unfortunately, your client is in for some bleak news. According to one study, in 2010, out of roughly 1,500 protests filed with the GAO, the GAO sustained merely 45 protests.27 Of those sustained protests, only eight (.5 percent of protests filed) resulted in a favorable contract award for the protestor.28 Notably, this study only considered protests that the GAO decided on the merits and did not address protests where the procuring agency voluntarily took corrective action in response to a protest. Accounting for voluntary corrective action, a separate study estimates that a protestor has roughly a 12 percent chance of ultimately winning the contract.29 Either way, while it might be prudent to analyze the strengths of your client’s grounds to protest (e.g. by reviewing GAO decisions in similar cases), it is more likely that protesting the contract award will not yield the result your client desires (i.e. to win the contract for himself).

THE ULTIMATE DECISION

Your client now realizes that the decision of whether to protest, like many legal issues, ultimately boils down to a business decision only he can make. On one hand, it is possible to obtain some form of relief by filing a protest. Statistically, however, even though a successful protest might give a contractor another bite at the apple, protesting a government contract award does not substantially increase the likelihood that the protestor will ultimately secure the contract. Thus, in most cases, the time and expense of protesting a contract award could be more effectively used locating a similar solicitation on which to bid, seeking legal counsel to carefully scrutinize the solicitation’s evaluation criteria and preparing a proposal that meticulously aligns with those criteria so as to simplify the government’s award decision. You therefore conclude the meeting by counseling your client that he has an important decision to make, and that you are prepared to help him navigate the legal intricacies involved in whichever path he chooses.

ABOUT THE AUTHOR
Eric Underwood is an associate attorney with Barrow & Grimm PC, where he primarily practices civil litigation involving complex business disputes. Mr. Underwood received his bachelor’s degree from the University of Colorado in 2008 and graduated with highest honors from the TU College of Law in 2017. Prior to attending law school, he spent six years as a contracting officer in the United States Air Force, where he planned, solicited, negotiated, awarded and administered several contracts ranging in scope from base operational requirements to weapon system sustainment.

1. FAR 33.101(2016).
2. Id.; see also U.S. Gov’t Accountability Office, Bid Protests at GAO: A Descriptive Guide 6 (9th ed. 2009), available at www.gao.gov/ decisions/bidpro/bid/d09417sp.pdf.
3. FAR 33.101 (2016).
4. Kate M. Manuel & Moshe Schwartz, Congressional Research Service, Pub. No. R40228, GAO Bid Protests: An Overview of Time Frames and Procedures 6 (Jan. 19, 2016), available at www.fas.org/sgp/crs/misc/R40228.pdf.
5. Id.
6. Moshe Schwartz & Kate M. Manuel, Congressional Research Service, Pub. No. R40227, GAO Protests: Trends and Analysis 11 (July 21, 2015), available at www.fas.org/sgp/crs/misc/R40227.pdf.
7. Id.
8. Id.
9. Id.; see also FAR 15.505(e), 15.506(d) (2016) (identifying the information an unsuccessful offeror may request upon elimination from the competition).
10. FAR 15.505(a)(1), 15.506(a)(1) (2016). Accordingly, in most cases, if an unsuccessful offeror did not receive a debriefing, it is because he did not request one.
11. Id. 15.506(a)(1).
12. Id. 15.506(d).
13. Protests to the agency are typically futile, as the agency itself reviews the protestor’s concerns. FAR 33.103(d)(4) (2016). Protests to the Court of Federal Claims involve a full-scale judicial review of the agency’s decision, thus increasing the complexity and cost of the protest. Fed. Cl. R. App’x C, available at www.uscfc.uscourts.gov/sites/default/ files/170801-FINAL-Version-of-Rules.pdf.
14. Schwartz & Manuel, supra note 6, at 5.
15. Ameron, Inc. v. United States Army Corps of Eng’rs, 809 F.2d 979, 986 (3d Cir. 1986)).
16. Manuel & Schwartz, supra note 4, at 16.
17. 4 C.F.R. §21.1(c) (2016).
18. Id. §21.1(f).
19. FAR 33.104(a)(3)(iv)) (2016). The agency report includes the contracting officer’s statement of facts relevant to the protest, including a best estimate of the contract value, a memorandum of law in response to the protest and all relevant documents in the agency’s possession.
20. Id. 33.104(e).
21. See id. 33.104(a)(2) (mentioning that the GAO may deny a protest); see also id. 33.104(a)(3)(i)(A) (identifying that the GAO may dismiss a protest); see also id. 33.104(h)(8) (outlining a situation in which the GAO might sustain a protest).
22. 4 C.F.R. §§21.1(i), 21.2(b) (2016).
23. Manuel & Schwartz, supra note 4, at 15.
24. Id.
25. 4 C.F.R. §21.8(a) (2016). The available remedies are: 1) refrain from exercising options under the contract; 2) terminate the contract; 3) re-compete the contract; 4) issue a new solicitation; 5) award a contract consistent with statute or regulation; or such other recommendation(s) as GAO determines necessary to promote compliance.
26. Id. §21.8(d).
27. Manuel & Schwartz, supra note 6, at 9.
28. Id.
29. Thomas Papson et al., The Odds of Winning a Contract After Protesting are Higher than You Think, 55 Gov’t Contractor no. 16 (2013).



Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 24 (February 2018)

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