Pre-Award Bid Protests – Don’t Forfeit Your Rights

June 5, 2014

A recent bid protest decision highlights one of the most common reasons for protest dismissals – the failure to challenge a solicitation before the proposal due date.

The protest was filed by the incumbent on two Department of Labor contracts. When DOL decided to recompete the contracts under small business set-aside rules, the incumbent faced the prospect of losing the work because it did not qualify as a small business. The incumbent challenged the small business set-aside, but waited to file its GAO protest until after the deadline for proposal submission.

The GAO dismissed the protest, reaffirming its “strict rules” requiring that “a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt to proposals be filed before that time.” Adams and Associates, Inc., B-409680,B-409681, Apr 22, 2014.

Too often, government contractors don’t think about protest grounds until after a competitor has won the award. In light of the GAO’s strict rules on timeliness, contractors should evaluate potential pre-award protest grounds as a regular part of proposal development.

To facilitate this, contractors should consider developing an internal checklist of potential pre-award protest grounds, such as improper solicitation terms, small business issues, and “out of scope” task orders. A careful consideration of pre-award protest grounds will ensure that contractors don’t miss their chance to challenge the solicitation – and lose a valuable contract opportunity in the process.

For more information, please contact the author or visit our government contracts practice page.