When to call
Time is short.
Bid-protest deadlines are jurisdictional, and the rules leave you little time. You need every minute of it. These are the three most important calls you can make.
- Call well before the proposal is due. Is anything about the solicitation confusing, ambiguous, or uncompetitive? If so, call.
Protests challenging the terms of the solicitation are waived if not raised by the proposal-due deadline. - Call the day you receive notice of unsuccessful offeror. Do you have the grounds for a protest? Can you get corrective action? What are the chances for award if you do? If you can’t answer those questions, call.
The decisions made in the first 72 hours after notice of unsuccessful offeror, and in the 48 hours after step one in an enhanced debriefing, are critical. So is getting good advice. - Call the day you learn a competitor protested your award. Did the contracting officer tell you that your award has been protested? Did you receive a redacted protest that tells you nothing? Do you want to keep your award? If so, call.
Defending your award begins immediately and intervening with outside counsel maximizes your defense. Whether to intervene is an easy decision.
Pre-award
Let the agency fix it.
Filing pre-award protests at the agency level instead of GAO.
Pre-award protests help correct solicitation defects before proposals are due. Issues not raised before the deadline are waived, and unresolved defects may increase risks of performance. Pre-award protests can be filed at the agency, at GAO, or at the Court of Federal Claims. Each forum has its own rules, deadlines, and remedies. Our experience is that the agency is usually the best place to start, for a number of reasons:
- We find the agency is more willing to take corrective action when it is given the opportunity.
- Agency-level protests are not public, are less adversarial, and lead to more direct communication with agency counsel.
- Agency-level protests are cheaper and faster for most issues.
- Agencies don’t want bad solicitations. Sometimes the issue was raised internally and no action was taken because there wasn’t consensus. A protest is sometimes how that internal dispute gets revisited and resolved.
What it looks like in practice
- Davis-Monthan AFB — Program Manager certification. Three days before proposals were due, the Army required the proposed PM to hold a specific certification at proposal submission rather than at the start of performance. We drafted a GAO pre-award protest and provided a copy to agency counsel. We told agency counsel we would file the GAO protest by close of business unless the new requirement was removed or deferred. The agency removed the requirement.
- Army Corps of Engineers / AFIMSC environmental services. The solicitation excluded the past performance of any parent, affiliate, or subsidiary, even one meaningfully involved in performance. That limitation left our client with little chance of award. We protested at agency level, arguing unduly restricted competition. The agency amended the solicitation; our client submitted a stronger proposal and won the contract.
- Eielson AFB Central Heat and Power Plant — Phase 3. The solicitation required the contractor to warrant performance of equipment and fuel the agency itself had dictated, reversing the normal allocation of risk associated with design specifications. We protested to the agency the day proposals were due. The agency dropped the warranty requirement.
Post-award
Corrective action is not the objective.
Not every award decision can — or should — be challenged.
In a best-value procurement, winning a protest often means corrective action — whether the agency volunteers it, the GAO recommends it, or the Court of Federal Claims orders it. Corrective action usually results in a new evaluation and a new best-value decision. Corrective action is not an award.
The agency selected the awardee for a reason. Unless corrective action affects that reason, nothing has changed, including the award decision.
Before filing a protest, we want to know not only whether the agency made a mistake, but whether correcting that mistake could change the outcome. We push hard when it might. We counsel against a protest when it almost certainly will not.
If a protest has no realistic chance of changing the outcome, you may want to save your money.
What it looks like in practice
- USS Michael Murphy (DDG-112) — Pearl Harbor Naval Shipyard. Our client lost a ship-repair delivery order to a competitor. The award notice demonstrated it was a very close competition. We had strong arguments for corrective action and corrective action would give the client a reasonable chance of award. We protested at the GAO and the agency agreed to take corrective action. We then filed an agency-level protest of the Navy’s corrective action plan. After we filed our agency-level protest, the Navy modified its plan, rendering our protest moot. We then intervened when the original awardee challenged the Navy’s broadened corrective action at GAO. Our client was awarded the contract.
- Army Corps of Engineers maintenance services (B-423979). The Corps awarded a competitive 8(a) maintenance services contract to a competitor. We filed a post-award protest at GAO challenging the evaluation and the award decision. Before the agency report was due, the Corps took corrective action — not a reevaluation, but termination of the awarded contract, amendment of the RFP, and re-issuance of the solicitation. The awardee objected to the scope of the corrective action; GAO routed that fight to a separate protest and dismissed ours as academic. Our client received the resulting award.
- Air Force 711th Human Performance Wing IDIQ (B-419123). The Air Force awarded multiple-award IDIQ contracts to eleven firms for service support to the Air Force Research Laboratory’s 711th Human Performance Wing and found Ajanta ineligible. We filed a post-award protest at GAO challenging the technical-experience evaluation as unreasonable and inconsistent with the solicitation. Before the agency report was due, the Air Force took corrective action — it agreed to reevaluate every offeror’s technical volume on the contested technical identifications and to issue additional awards to any offeror that cleared the scoring threshold. GAO dismissed the protest as academic.
Intervening
Protect your award.
Intervening just makes sense.
We intervene. Always.
When a competitor files a protest challenging your award, important things are happening that affect your contract, and intervening gives you opportunities you would not otherwise have.
- We are able to gain admission to the Protective Order. We cannot disclose protected material. But we can tell you not to worry when you shouldn’t.
- We can prevent supplemental protests by protecting your proposal — and the agency’s evaluation of your proposal — from disclosure to protester’s lawyer. Unless the protester can assert a non-speculative protest that makes those documents relevant, they shouldn’t be disclosed.
- We coordinate with agency counsel to defend the agency’s award decision.
- We can file comments on the Agency Report, if necessary. If the agency’s brief makes the right arguments and makes them well, we file nothing. If the agency misses something, we file comments.
We cannot conceive of a situation in which we would counsel an awardee not to intervene.
What it looks like in practice
- Fort Benning barracks renovation, Army Corps of Engineers (B-408890). The Corps awarded a $30M design-build task order to our client. The unsuccessful offeror — eliminated for exceeding the $30M cost limitation — protested at GAO, arguing the Corps owed it discussions about its defective price. We intervened. GAO held the Corps’ questions were clarifications, not discussions, and denied the protest. Our client kept the award.
- Army Corps of Engineers Minneapolis building maintenance (B-419293). The Corps awarded a building maintenance services contract to our client over Kaiyuh Services, which had been rated Technically Unacceptable. Kaiyuh protested at GAO. We intervened. GAO dismissed Kaiyuh’s initial allegations as premature and its supplemental allegations as untimely, and held Kaiyuh was not an interested party to challenge price because its proposal was technically unacceptable. Our client kept the award.
- SEC iPASS 2.0 professional support services. The protester challenged the SEC’s award of a $2.5 billion 8(a) IDIQ to our client. The protester claimed the agency made several evaluation mistakes with our client’s and its own proposals, as well as the source selection decision. The agency responded in the Agency Report and we prepared comments on the Agency Report. GAO denied the protest on every ground raised by the protester. Our client kept the award.
Results
Representative matters.
Pre-award
- Davis-Monthan AFB — Program Manager certification. The Army added a PM certification requirement three days before proposals were due. We drafted a GAO pre-award protest and gave the agency until close of business; the agency withdrew the requirement.
- Army Corps of Engineers — AFIMSC environmental services. We filed an agency-level pre-award protest challenging the exclusion of affiliate past performance as unduly restrictive. The agency amended the solicitation; our client won the contract.
- Eielson AFB — Central Heat and Power Plant, Phase 3. We filed a pre-award protest the day proposals were due, challenging a warranty the contractor could not control where the agency dictated the equipment and fuel. The agency dropped the warranty requirement.
Post-award
- Army Corps of Engineers maintenance services. We filed a post-award protest at GAO; the Corps terminated the awarded contract, amended the RFP, and re-issued the solicitation. Protest dismissed as academic on corrective action.
- Air Force 711th Human Performance Wing IDIQ. We filed a post-award protest at GAO; the Air Force agreed to reevaluate every offeror’s technical volume on the contested subfactors and to issue additional awards. Protest dismissed as academic on corrective action.
- USS Michael Murphy (DDG-112) — Pearl Harbor Naval Shipyard. We protested at GAO, forced corrective action, filed an agency-level protest of the corrective-action plan, and intervened when the original awardee challenged the broadened corrective action. Our client was awarded the contract.
- Department of Labor OWCP, Boston District Office (B-413819). We filed an affirmative bid protest at GAO for the disappointed offeror on a procurement for medical second-opinion services. The agency took corrective action; our client was awarded the contract.
- Department of Labor OWCP, Seattle District Office (B-412536.1). We filed an affirmative bid protest at GAO for the disappointed offeror on a procurement for medical second-opinion services. The agency took corrective action; our client was awarded the contract.
Intervening
- Fort Benning barracks renovation, Army Corps of Engineers. We intervened at GAO for the $30M design-build awardee. GAO held the Corps’ questions were clarifications, not discussions, and denied the protest. Our client kept the award.
- Army Corps of Engineers Minneapolis building maintenance. We intervened at GAO for the awardee against a protester rated Technically Unacceptable. GAO dismissed the initial allegations as premature and the supplemental allegations as untimely, and held the protester was not an interested party. Our client kept the award.
- SEC iPASS 2.0 professional support services. We intervened at GAO for our client, the awardee of a $2.5B 8(a) IDIQ. After the agency responded in the Agency Report, we prepared comments. GAO denied the protest on every ground raised. Our client kept the award.
SBA appeals
- $2.5B SEC iPASS 2.0 size appeal won at OHA. OHA granted C2 Alaska’s appeal from the area-office size determination, vacated, and remanded. On remand, the area office reversed and our client kept the contract. Size Appeal of C2 Alaska, LLC, SBA No. SIZ-6149 (2022).
- PacArctic size protest defeated at OHA. Size appeal at the area office targeting PacArctic’s award of a Navy Strategic Systems Programs financial-management 8(a) set-aside; OHA denied PacArctic’s appeal and affirmed. Size Appeal of PacArctic, LLC, SBA No. SIZ-6105 (2021).