An unavoidable reality of the government contracting process is the fact that vendors responding to a request for proposal (RFP) or request for quotation (RFQ) may at times want to contest the outcome of a particular bid. Vendors who find themselves in this situation may choose to file a bid protest with the Government Accountability Office (GAO).
If choosing such a route, it is crucial that protesters of a government solicitation or contract be diligent—to the letter—as they enter the protest process.
Kenneth E. Patton, a managing associate general counsel for procurement law in the GAO Office of the General Counsel, recently spoke to Homeland411 about what he sees as imperative if choosing the protest route. Although many other factors can exist, and each circumstance has its specifics, Patton offered specific guidelines for vendors entering the protest process and provided some background about GAO’s role.
First and foremost: Know the rules. “We have very strict timelines for the filing of protests and the filing of responses, that if you do not adhere to them, we won’t hear your matter,” he said. “Some people are upset at that and, you know, rightly so, but in order to manage the large number of cases that we have—and to be fair to all parties that participate in the process—we adhere strictly to those time-limit rules.”
The second item—related to the first—he urged protesters to pay very close attention to the timelines. This includes knowing when to file, how to file, and also understanding if the protest is too early or late. “Some people get tripped up on some of those things,” Patton said. “They need to be responsive to the matters, diligently pursue your issues, don’t let them languish, because if you do, you risk your protest or your pleadings not being timely.”
For those unfamiliar with the GAO protest process, in particular, he said the protest also must include a very specific statement clarifying why the vendor is making the protest.
“Sometimes what we get from vendors are simply they’re not happy with the result, but they don’t tell us what the legal and factual grounds of protest are,” Patton said. “One of the foundations of what we look at is violation of law or regulation, or failure to follow the RFP or RFQ.”
He emphasized that the statement must clarify mistakes or wrongdoing on the part of the government in the bid process. “It’s not enough to say, ‘I should have gotten the award,’” Patton added.
In addition, Patton noted that firms must keep in mind that GAO does not get involved in and will not review certain matters. A couple of examples he provided were issues of contract administration or those related to contract performance.
Process Framework
When a protest occurs, Patton said GAO will notify the agency identified within a day.
“One of the unique features of filing at GAO is that … if vendors file within a certain timeframe, they can get what is called an ‘automatic stay of contract performance,’” he said. “What that means is that the government agency can’t either award the contract or can’t continue or start performance with of contract until GAO resolves the bid protest.”
After the protest notification, the identified agency has 30 days to assemble an “agency report”—the agency’s initial response to the specific protest or allegation.
The protesting firm then has 10 days to comment on the agency report to “explain or challenge what the agency has done to explain or challenge the protest,” Patton said. “It’s sort of the protester’s opportunity to rebut the agency’s explanation.”
At this point, GAO has heard both sides of the issue and can begin adjudication procedures.
“One of the other unique features of the GAO bid protest forum is that, by statute, we have 100 days from the filing of a protest to issue a decision,” Patton said. “At the point of comments being filed, that’s usually around day 40, and so [over] the remaining 60 days the GAO attorney is researching the issue, reading the record, trying to decide the case.”
Subsequent actions can include a hearing, depending on specifics of a protest or a “dispute resolution conference” where parties can negotiate,” he added.
“At any point when a case is here at GAO, a party can decide to withdraw its case here and take that case to the court of federal claims,” Patton said.
This is a general look at the protest process, of course, and vendors are urged to educate themselves on the specifics of the entire process. Before taking any steps toward a bid protest, Patton said, scouring the process outlined at the GAO website is a good first step. Bid protests are part of the reality of government contracting, and little can substitute intimate knowledge of the process before taking action.
© 2018 Homeland411
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