Top 10 Strategies for Cost-Effective Protests

 

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After a government contractor spends lots of money preparing a proposal to win a government contract, a difficult issue is whether the contractor should spend even more money to protest award of the contract it did not win. Statistics from the Government Accountability Office (GAO) show that, in recent years, more than 40% of the protests GAO closed in a given year resulted in the protester’s having obtained some form of relief from the contracting agency ‒ either as a result of the agency’s having voluntarily taking corrective action or GAO’s having sustained the protest.

In deciding whether to protest, a contractor should avoid throwing good money after bad. Here are 10 strategies to help you make a cost-effective decision about whether to protest.

  1.  Always get a debriefing first.

Before you protest, find out why you lost. Ask the agency for a debriefing. In addition to learning why you lost, you will also get a sense of how strong your protest would be. The most important use of a debriefing, however, is not as a protest-prep session. Because the relationship between the agency and the contractor is so important, you should use the debriefing primarily as a means of marketing your company to the agency for future contracts

  1. Do not waste money on agency-level protests.

You can file a protest with the agency, GAO, or the U.S. Court of Federal Claims (CFC). In fact, you can file a protest with all three. A protest with the agency is seldom cost-effective, however. Your protest is often heard by the same contracting officer who denied you the contract in the first place, so there is not much of a chance you will be able to get that same contracting officer to reverse his or her award decision. In addition, an agency-level protest can limit your right to effectively protest to GAO and stay the winner’s contract performance while the GAO protest is pending.

  1. Do not waste your money going to GAO with certain arguments

It’s a terrible waste of your money to protest to GAO based on arguments GAO has already said it cannot consider.  Such arguments include (1) the challenge of certain task and delivery order awards, (2) arguments that the agency denied you the contract in bad faith, (3) claims that the winner is not really a small business (an issue for the SBA to deal with), and (4) arguments that the winner’s price is too low when price realism is not an evaluation issue.

  1. Get a lawyer!

Although GAO does not require that a protester have a lawyer, getting one can be a big advantage in many ways. One is related to GAO’s use of “protective orders.” Generally, only a lawyer can be admitted to a protective order and allowed to see proprietary information in the winner’s proposal and the agency’s evaluation documents. Such documents may contain information that can be used as additional grounds for a protest.Another advantage of having a lawyer is that experienced protest lawyers know GAO’s rigid deadlines and the quirks of a GAO protest. For example, GAO will throw out a protester’s “lack of meaningful discussion” argument unless the protester actually tells GAO what it would have told the agency if the agency HAD conducted meaningful discussions.

  1. Know when to hold ‘em, know when to fold ‘em.

If the relationship you have with the agency is important to you, you can pull out of a protest at any time. If you reach a point where you think you are going to lose, you might want to consider whether withdrawing the protest would have a good impact on your relationship with your government customer. Typically, this point comes after you receive the agency’s report (issued within 30 days after you submitted the protest) describing why the agency thinks your protest will be unsuccessful.

  1. Winning contractors: Do you want to rely solely on the agency’s lawyers to protect your contract?

The winning contractor has different issues to deal with. The biggest one is whether to have only the contracting agency’s lawyers defend the agency’s award and respond to the arguments of the protester’s lawyers. To some extent, the answer depends on the agency: big agencies may have lawyers who routinely handle protests, but smaller agencies may not. Yet even the bigger agencies like GSA and DoD may not use lawyers at the department level, and instead make the agency’s component’s lawyers (lawyers for GSA’s Public Buildings Service, for example) defend the component’s decision.

Another problem is that the agency may want to moot the protest by offering to take corrective action, such as a re-evaluation or re-compete, that will not be in your company’s interest.

Finally, the more your protest’s key issues involve technical matters about which your people know more than the agency’s people, the greater the need to intervene.

  1. At GAO, protester costs and attorneys’ fees are available.

You can get your bid preparation costs, protest costs, and attorneys’ fees paid for under certain circumstances at GAO.

  1. Will GAO even hear your protest?

Not every unsuccessful bidder has the right to have GAO consider its protest. Just because your company went to the considerable expense of preparing and submitting a proposal to an agency, your company is not guaranteed GAO consideration at the protest stage. For example, if your proposal was fourth-rated for a lowest-priced, technically acceptable solicitation, you may not be an “interested party” with standing to have GAO consider your protest.

  1. Make sure the agency’s mistake actually harmed you.

Just because the agency made a mistake in denying your company a contract, that mistake does not automatically mean you win the protest. Some mistakes are “harmless error.” For example, if the agency mistakenly rated your technical proposal “very good” and not “excellent” as you think the solicitation required, that mis-scoring might not have harmed you if the winner had an “excellent” rating; the GAO might find that even if the agency were to re-score your technical proposal “excellent,” your price would still be higher than the winner’s and, thus, you were not “prejudiced” by the agency’s mistake because your company would still lose.

  1. Avoid “Blanket” Protest Policies.

Some companies have a blanket policy of never protesting a lost contract. Others will protest because today is Tuesday. These blanket and literally “thought-less” protest policies do not serve the company well. Each unsuccessful bid has to be considered on its own merits. For example, an “automatic” protest policy can hurt your relationship with an agency that is your primary customer, but have no impact on your relationship with an agency that you rarely ‒ if ever ‒ do business with.To sum up, as complex as some procurements can get, protests of those procurements can be even more complex. Like any business decision you make, you have to consider a lot of factors. One factor, obviously, will be cost of the protest. By keeping in mind these 10 strategies, you can be confident that whatever decision you make, the decision will be a cost-effective one.

 

Terrence O'ConnorTo learn more, contact Berenzweig Leonard attorney, Terry O’Connor. Terry has been involved in government contracts law for almost 40 years, litigating, teaching, writing, and advising on behalf of, initially, the federal government and then later government contractors. He also has written five popular books on government contracts law and procedure, teaches contracts law and writes a monthly column on recent Court, GAO, and BCA decisions for the Federal Acquisition Report.