WAS YOUR COMPETITOR AWARDED A US GOVERNMENT CONTRACT THAT SHOULD HAVE BEEN AWARDED TO YOU?

If you submitted a response to a US Government Request for Proposal, Invitation for Bid or another type of US Government solicitation, thinking that the award was in the bag but you lost it, the usual recourse, a bid protest, might be less appealing in coming years.

CONTEXT

A bid protest is a formal, written pleading filed by an interested person, company, or other entity who responded to a US Government solicitation expecting award but not receiving it due to a flaw in the procurement process, fraud, a misrepresentation or other impropriety committed by the US Government or by the awardee.

Bid protest pleadings can be filed with certain agencies of the US Government or with the appropriate Federal court indicating that the award of a US Government contract should not have been made because of a procedural or other issue as noted above. See FAR Part 33. There are strict time limits which must be followed when filing a bid protest to avoid early disposition of the protest.

Protests can be filed before or after the award of a US Government contract by the offended party. The process is formal, and the requirements to be eligible to protest and to win a protest are very specific and must be pled with specificity or the protest will be rejected by the hearing agency or court.

To make matters more challenging, the go, no go bid protest analysis must consider the following.

FY 2018 NATIONAL DEFENSE AUTHORIZATION ACT

There is a chance that the Act will include provisions to make bid protests less attractive as follows:

Contrary to past US Government policy and practice,

1. If the bid protest is unsuccessful, qualified defense contractors losing a bid protest might be required to pay the Government’s costs of processing that protest;

2. If the bid protest is filed resulting in a delay of performance requiring a bridge or temporary contract, contract payments due to the protesting contractor might be withheld by the Government.

In effect, losing a protest could cost more than the usual attorney fees and related costs paid to your counsel, and, to make matters worse, revenue from the US Government could stop during protest resolution. A chilling effect on a protestor, to understate.

Observe as the 2018 National Defense Authorization Act moves through our legislative process. Look for amendments to the Act making it riskier to file a bid protest. The analysis might get trickier as the Act progresses through our legislature.