The government fiscal year runs from October 1 to September 30, and at the end of each fiscal year federal agencies rush to award contracts and commit funding before that funding expires. As a result, our Government Contracts Practice is typically very busy between September and November filing protests of awards or defending awards to our clients, often filing detailed challenges to awards on very short notice, typically 10 days or less.
This year has been no exception, and we have been grateful that our clients have relied on us to file or defend a number of protests at the Government Accountability Office (GAO) and the Court of Federal Claims related to awards or solicitations issued by the Army, the Navy, the CIA, and the State Department, among others agencies that together total well over $1 billion.
Three Key Issues for Government Contractors to Remember About Protests
While some protests are still pending, in the month of October alone the government agreed to take “corrective action” in five procurements as a result of the protests we filed, giving our clients another shot at important contracts in four post-award protests and agreeing to remedy defects in a solicitation after a pre-award protest. The fact that we continue to see a significant percentage of protests being resolved through corrective action highlights three issues all government contractors should keep in mind.
1. Embrace the protest process.
The protest process is, fundamentally, part of the procurement process. While some commentators have suggested that protests are overly cumbersome and unnecessarily delay procurements, the fact is that without the process in place now, billions of dollars in contracts would have been awarded to undeserving contractors based on improper evaluations. The slight delay required to consider whether a federal government contract was awarded in accordance with the law is not only appropriate, it is necessary to ensure that the government gets the right solution at the right price. And without the opportunity to challenge improper awards, it is likely that a number of companies would be hesitant to participate in the federal marketplace. Finally, in the rare circumstance that an agency must proceed with performance of a contract notwithstanding a protest, federal law provides a safety value that permits agencies to do just that upon the necessary written findings.
So the next time your company considers bidding on a solicitation, ask if there are any errors in the evaluation criteria. A pre-award GAO protest, which must be filed prior to the time proposals are submitted, may provide an efficient mechanism to have that error corrected. And for contractors that receive notice that their proposals have not been successful, ask whether the award makes sense in light of what you know about your proposal and the awardee’s capabilities. Better yet, given the short time allowed for filing of GAO protests, consider your protest strategy as part of your business capture strategy.
2. Initial protests must be thorough.
Second, because agencies regularly issue corrective action soon after protests are filed – often within less than 30 days – it is important to ensure that initial protests, whether pre- or post- award, are thorough and clearly articulate errors that would most likely result in the protest being sustained. While approximately 20% of protests are sustained after a decision on the merits, whenever a protest is filed the goal should be to obtain corrective action. A well-pleaded protest will increase the likelihood of that occurring, and while it may mean additional costs at the early stages of a protest, it may ultimately be more cost effective.
3. Value the relationship between the contractor and the Government.
Third, the primary goal of any protest action is to increase the likelihood that your company will ultimately be awarded the contract. For that reason, while challenging a solicitation or an award, a contractor’s relationship with its government client must remain top of mind. It is possible to take issue with a solicitation or an award decision without impugning the integrity of the source selection officials, to disagree without being disagreeable. Government contract awards, particularly large awards, are complex, and contract administration offices are often understaffed, overworked and under-trained. The combination can, unsurprisingly, result in errors in the procurement process. Bringing those errors to light and ensuring that awards are ultimately made in accordance with all applicable requirements is a goal both contractors and government agencies should share, and attacking agency personnel for making mistakes does little to forward that goal.
Once again, our government contracts team at Bass, Berry & Sims sincerely appreciates the faith our clients have shown in our ability to support them in pre- and post- award protests. If you have any questions about our protest capabilities, please contact Richard Arnholt.