Navigating Successfully Through the Process

Getting notice that a bid protest was filed, or that as the successful offeror, a bid protest has been filed, creates a sense of urgency that most government contractors are not prepared to handle. U.S. Government Accountability Office (GAO) bid protest regulations have short deadlines and complex rules that you must follow. As the current awardee or unsuccessful offeror, your obligations and strategies are different. When it comes to making the decision on the next step, having an attorney who understands government contracts can be essential.

Bid protests are an integral part of federal contracting. The number of bid protests filed at the Government Accountability Office and the U.S. Court of Federal Claims has increased substantially in recent years. The increased number of bid protests filed reflects the growing number of companies that use the bid protest process as a part of their business capture strategy. Because protesters at GAO obtain some form of relief in 40 percent of the protests filed there, the bid protest process offers an attractive opportunity for disappointed bidders. However, it also poses significant risks for awardees of contracts.

Disappointed bidders have limited time to file timely protests at GAO. The rules of procedure at GAO are inflexible and strictly applied. Consequently, disappointed bidders have only a few days to explore potential protest grounds and to decide whether or not to file a GAO protest. To maximize their protest opportunity, protesters must first request and obtain a thorough “debriefing” from the procuring agency to enable their filing of a fully developed protest. This often results in an agency taking corrective action, thereby achieving the client’s desired result early in the protest process, and saving the protester significant time and money.

Conversely, in order to protect their interests, contract awardees must act quickly to intervene in protests filed against awards made to them. This means awardees must quickly assess the risks posed by a protest, and then intervene in the protest to assist the agency in defending the award. This could entail filing motions to limit the documents produced in support of a protest, or as appropriate, filing a motion to dismiss early in the process to put an end to the protest.

As a former Air Force Contracting Officer and a senior government contracts attorney, Kenneth Martin has unsurpassed government contracting experience. Furthermore, he has filed, prosecuted, and / or defended dozens of protests before both the GAO and the Court of Federal Claims. Kenneth Martin’s experience includes protests of major acquisitions and smaller-dollar contracts set aside exclusively for small businesses, HUBZONE, woman-owned businesses, or 8(a) competition. His experience crosses virtually all industry groups, including information technology, healthcare, aerospace, defense, telecommunications, professional services, construction, facilities management, and janitorial services. Mr. Martin’s government contracting experience and expertise is unsurpassed in all areas affecting our clients' ability to compete for and win contract awards, including:

  • Early advocacy of agency acquisition strategies; i.e., sole source award, set-asides for small businesses, etc.
  • Maximizing debriefing opportunities
  • Federal Supply Schedule Contracting
  • Competing for task orders and IDIQ contracts business, 8(a), HUBZone, SDVOB business, or women-owned business set-asides
  • Participating in and obtaining meaningful discussions
  • Competitive range determinations
  • Agency evaluations of cost realism and reasonableness
  • Application of agency evaluation criteria
  • Unequal treatment of offerors
  • Past performance evaluations
  • Best value determinations and cost-technical trade-offs
  • Organizational conflicts of interest and negotiation of corrective action

Effective use of the protest process can significantly enhance a company’s opportunity for success. However, the process can also put at risk contracts that the company has successfully competed for and won. Understanding the protest process and using it effectively to challenge an agency’s source selection decision can significantly increase a company’s opportunity for success. Attorney Kenneth Martin’s extensive experience, both as a former Air Force Contracting Officer and a government contracting attorney, ensures his clients the maximum opportunity for success to compete for and win government contracts.