01/19/2015 by Attorney George M. Nicholos
Authored by attorney Anthony J. Mazzeo
One of the most frustrating notices you can receive as a Government Contractor can come days after learning your company has won a contract award. In the days or weeks after an award, it is possible you may receive a “stop work order” and be advised that a competitor has protested your award. We all know that protests are a common occurrence in these days of fierce competition for government contract awards.
Your notice of protest might not follow immediately after the award because a protest is considered timely if filed within 10-days after the protester knew or should have known of the basis for its protest. For acquisitions conducted on the basis of competitive proposals under which a debrief is required when requested, the protest will be timely if submitted within 10 days of the debriefing. However, most protests are submitted within 5-days of the debrief so as to qualify for a statutory automatic stay of the contract performance.
Upon receiving notice of a protest from the GAO, an Agency must immediately advise the awardee, or if an award has not yet been made, the Agency must advise all offerors with a substantial chance of receiving an award. The contracting officer should provide the awardee a redacted copy of the protest with the protester’s proprietary information removed, giving an idea of the basis of the protest. The awardee will be permitted to intervene in the GAO Bid Protest to explain why the protester is incorrect and why the Agency’s award decision should stand.
Whether to intervene is an important decision for the awardee. While you can sit back and rely upon the Agency to oppose the protest, it is generally a good idea to ensure you have a “seat at the table” to provide input to the GAO through your attorney. Although a protective order issued in most cases will prevent the contractor itself from receiving un-redacted versions of the government’s Agency Report and source selection information, the intervenor’s attorney is able to fully review the material and make arguments to GAO on the contractor’s behalf.
While the Agency will often desire to support its award so as not to delay the contract performance by repeating the acquisition process, the Agency’s interests may not be the same as your company’s interests. If the protest attacks the awardee’s proposal or past performance, the awardee is in the best position to explain the issues and counter the protester’s argument. Just as importantly, the Agency counsel may have limited time or resources available to oppose the protest and can be bolstered by having an intervenor’s counsel making some of those arguments to GAO.
Though there are costs to intervening, failing to intervene in a protest can put your company at risk of losing the contract to Agency corrective action or an adverse GAO decision. While intervening does not guarantee that you’ll keep the award, it gives you an opportunity to influence the discussion and allows you the best chance to ensure your strongest arguments are made to GAO to support the award.