Recently, the U.S. Court of Appeals for the Federal Circuit (CAFC) set a firm timeliness rule for pre-award protests: If the agency amends the solicitation and in the process hurts a bidder’s chances of winning the contract, a bidder cannot wait until after losing the contract to protest that amendment. Any protest must be filed right away, before award. Failing to do so waives a bidder’s right to protest the amendment after award.
DoD issued a solicitation that initially made contract award dependent on the evaluation of the bidder’s proposals for a “basic contract” and 2 specific task orders. Only those offerors providing the best value for the basic contract would be considered for award of the task orders. Later, the agency issued Amendment 5 stating that only the basic contract would be awarded, that the task orders would be converted to sample task orders, that the proposals for task orders would be used for evaluating the pricing factor for the basic contract, and that no proposal revisions would be accepted.
After award, an unsuccessful bidder protested, arguing that the amendment was improper because it prohibited changes to proposals.
The appeals court concluded that the bidder should have protested Amendment 5 before award. By not doing so, the bidder had waived its right to protest after award. The court’s explanation was based on keeping the solicitation process fair: “a contractor with knowledge of the solicitation defect could choose to stay silent… If his proposal loses to another bidder, the contractor could then come forward with the defect to restart the bidding process, perhaps with increased knowledge of its competitors.”
As mentioned above, not all pre-award protests are bad business decisions. For example, a protest alerting the Contracting Officer to ambiguities in the solicitation might be welcomed and not counter-productive. Berenzweig Leonard for years has helped its government contract clients decide whether to protest pre-award and, if so, whether to protest to the agency, the Government Accountability Office, or the U.S. Court of Federal Claims. Although a pre-award protest can be a difficult business decision, it can also be the right one.
Terry O’Connor is the Director of Government Contracts with Berenzweig Leonard, LLP a DC region business law firm. Terry can be reached at Toconnor@BerenzweigLaw.com.