How To Avoid Common COFC and GAO Bid Protest Intervenor Mistakes

Becoming a bid protest intervenor is usually pretty simple. However, there are many cases where government contractors believed that the would become a bid protest intervenor but quickly found out that they were really not an interested party with legal standing to intervene in the protest.

Many contractors attempt to become an intervenor simply because they submitted a proposal to the government.

Intervenor Legal Definition

Intervention into a bid protest case means that the awardee, or some other interested party can become a party to the case and exercise its rights.

Intervening requires compliance with a variety of rules and legal analysis.  Becoming an intervenor in bid protest litigation can be problematic, for example, in a procurement evaluation where you were not the next lowest bidder in an LPTA contract solicitation.

To intervene, you still have to show that you are an interested party that meets the standing requirements. Both GAO and the Court of Federal Claims address this concern before deciding bid protest cases

Intervening in GAO Bid Protest Cases

Under GAO bid protest regulations, 4 CFR 21.0(b) allow interested parties to intervene and protect their interests to a specific procurement.  For pre-award bid protests, the contracting officer should notify all bidders that have a reasonable chance of receiving an award that a protest has been filed. 

On the other hand, if the award has been made (post-award), generally the contracting officer will notify the awardee who can be a potential intervenor. 

If a GAO protest is filed and you believe that you have rights to intervene, your attorney should notify GAO and learn whether you will be permitted to intervene.

Court of Federal Claims Intervenor

Similar to GAO bid protest regulations, the Court of Federal Claims also requires a showing of being an interested party and having the standing to become an intervenor in a bid protest action. Your attorney will have to file a motion to intervene and be also be allowed into the court’s protective order.

Not All Contractors are Interested Parties at COFC

• Government Contractors do not have an unconditional right to intervene.
• The Court of Federal Claims must have must have jurisdiction over the “interested party” in accordance with U.S.C. §1491(b) and RCFC 24.
• There is was no statute giving you a conditional right to intervene in a COFC bid protest
• The Court has held that if you do not have a claim or defense arising from the facts before the court, and if you have already been awarded the contract, then you might not be an interested party in the bid protest.

Common Mistakes Meeting Bid Protest Regulations

Knowing how to avoid bid protest intervenor mistakes can save companies a substantial amount of attorney fees and unnecessary litigation. Knowing what is intervening and the procedural requirements are a must per bid protest regulations. The following mistakes should be avoided at all costs.

1. Trying to intervene when you are not the next lower-priced offeror in an LPTA procurement. If you don’t have a substantial chance of receiving the award, then the COFC or GAO will not be able to grant the relief you seek. This would be a waste of the courts’ time.
2. Elimination from the competitive range and intervening in a post-award protest can be a costly mistake. Government contractors are required to file a pre-award protest to resolve the elimination matter.
3. If the contracting agency deems that you have a material misrepresentation in your proposal, the Court of Federal Claims has ruled that material misrepresentations in a bid disqualify a bidder from competing for the contract award. See Northrup Grumman Corp. v. United States, 50 Fed. Cl. 443, 468 (2001). In that case, the COFC held that a bidder to a government contract who makes material misstatements in its proposal taints the award to such a bidder. The Court reasoned that your misrepresentation prevents government contracting officials from making a best value determination and simply taints the procurement process. When a bidder is found to have misrepresented its ability to perform a contract, that bidder will lose its right to execute the solicited work or bid on the reprocurement of the contract. Planning Research Corp. v. United States, 971 F.2d 736, 741 (Fed. Cir. 1992)).

The Following Cases May Impact Your Interested Party Status

• Advanced Data Concepts, No. 98-495C (Fed. Cl. June 18, 1998)
• Hewlett-Packard Co. v. U.S., No. 98-406 C (Fed. Cl. May 28, 1998)
• Ramcor Services Group, Inc. v. United States, No. 98-152C (Fed. Cl. June 24, 1998)

Possible impact of not intervening at the GAO protest level: When a bid protest has gone through the GAO litigation process without any intervention on your part, and the adverse result causes the protestor to file a new bid protest case at the Court of Federal Claims, it may be a contested dispute as to whether or not you can become an intervenor at the Court of Federal Claims.  The analysis may be different if the protest is only filed at the Court of Federal Claims. See important tips for government contract protests.

You Must Meet the Interested Party Definition When Intervening: To participate in any case, and to meet the court’s intervenor legal definition, you still must show that you are an interested party. For example, if you submitted a non-responsive proposal, you may have a hard time showing that you are an interested party worthy of intervening in a bid protest case. A non-responsive proposal eliminates your standing and interested party requirements. See Galen Med. Assocs., Inc. v. United States, 56 Fed. Cl. 104 (2003), aff’d, 369 F.3d 1324 (Fed. Cir. 2004).

For help intervening into a bid protest case, and to make sure you meet the intervenor definition, call the government contract and bid protest law firm at Watson & Associates LLC. 1-866-601-5518.