How to Intervene or Defend in A Bid Protest?

Intervening Learning how to intervene and defend in a bid protest at GAO or Court of Federal Claims stems from a standing and litigation strategic plan.  Under 4 CFR 21, An intervenor in a bid protest is typically the awardee. There is much litigation on this very issue. Government contractors must take the requirements for becoming an intervenor seriously.

  As an interested party, you have a right to gain intervenor status and to intervene in the bid protest action and include your position on the record. As part of the process, you must show that you are an interested party that has been prejudiced by the agency’s adverse action. 

4 CFR 21 What Does Intervene Mean? What is Intervenor Status?

Under GAO bid protest regulations 4 FCR 21 to intervene means that the awardee, or some other party with legal standing, can enter their appearance into the case and be heard by the respective bid protest court.

Having intervenor status means the awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial chance of receiving an award if the protest is denied.

As an intervenor, you still have to abide by the GAO bid protest regulations, or the Court of Federal Claims rules your goal would be to try to keep the award. By defending against allegations by the protestor, you will be able to respond to get access to the Agency Report. However, you can only accomplish this by retaining a COFC or GAO bid protest intervenor lawyer that can gain access to the court’s protective order. Contractors are not allowed to gain access to the Agency Record simply because there are sensitive source selection materials that belong to other bidders.

Right to Intervene Under 4 CFR 21

Absent a traditional injury in fact, intervenor standing to defend in public law litigation is appropriate only where state or federal law confers on the intervenor the authority to represent the government’s interest.  When deciding how to intervene and defend in a bid protest, you still have to meet the interested party requirements under bid protest regulation 4 CFR 21.

Does the Court Have Jurisdiction to Hear Your Case?

To bring a case before the Court of Federal Claims, The Tucker Act, 28 USC 1491, allows the court to have jurisdiction to“render judgment on an action by an interested party objecting to a solicitation by a [f]ederal agency for bids or proposals for a proposed contract or to a proposed award or . . . any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 USC 1491(b)(1).

COFC or GAO Bid Protest Intervenor? Why Intervene in a Bid Protest? 

Many government contractors wait it out to see what happens. This can be a crucial mistake because the federal government does sometimes lose in contract bid protests. What does it mean to intervene in a case?  It means that when the court issues a ruling, you are bound by the decision. Although the protestor is challenging the agency’s award decision, the reality is that it is your company’s profits on the line.

For example, Once the protest is received, the contracting agency and/or an intervenor may request that GAO summarily dismiss the protest or some of its grounds. 4 CFR 21.3(b). If you are considering intervening in a Court of Federal Claims protest, you may also find that if you did not intervene at the GAO protest level, the court may not give you much attention since you failed to even show interest at the lower level.

• The Agency’s approach may not guarantee that you keep the award;
• You have a say in the matter and get to respond to protestor’s arguments;
• Failure to intervene may hurt your efforts if you decide to go to the Court of Federal Claims;
• You can gain access to the agency source selection records by hiring a protest intervention attorney;
• At the Court of Federal Claims level, an intervention attorney also understands the complex procedural rules in addition to bid protest law.
• This can be a substantial benefit when you are trying to defend a high-value contract in a protest.

Challenge to Intervenor Status By Government

Sometimes the agency lawyers will attempt to rule out a second intervenor because it may argue that even if the other intervenor would win on a particular source selection problem that it would still have no chance of getting the contract.

• Oftentimes the government’s  attorneys would use the case of  Impresa Construzioni Geom Domenico Garufi v. United States, 238 F.3d 1324, 1334 (Fed. Cir. 2001) for the proposition that “protesters who . . . finished lower than second after evaluation does not have legal standing to protest the procurement.”
• The agency will argue if you receive a lower evaluation score than the awardee that you cannot be said to have had a substantial chance of receiving the contract award and therefore lack standing.

Note that to be able to withstand a challenge to intervene in a bid protest you have to show that you would have stood a substantial chance of winning the contract but the for the agency error. The standard does not mean that you have to prove that you would have actually been awarded the contract.

The government or protestor my try to argue that you have suffered no prejudice from a significant procurement error. E.g., CliniComp Int’l, Inc. v. United States, 904 F.3d, 1353, 1358 (Fed. Cir. 2018). You must be prepared to deal with this weapon against you. Addressing this upfront would one way of minimizing expensive litigation costs.

How to Defend Against Agency Challenge to Your Intervenor Status

Sometimes, contracting agencies argue that simply because your company was not next in line that you are not an interested party or have intervenor status.  Such a plain assertion creates room for you to defend against the agency’s challenge. Having the right intervenor defendant attorney on your team can potentially counter this argument. When looking at the legal meaning of being an intervenor in bid protest litigation, the reality is that the Federal Circuit (higher court to the Court of Federal Claims) does not require a protester to show that, “but for the alleged error, the protester would have been awarded the contract.” Rather, the protester intervenor need only show that, had the evaluation been proper, the protester would have had a substantial chance to win the award. See Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1562 (Fed. Cir. 1996).

Tip: To have a “direct economic interest”  as an intervenor defendant in bid protest litigation means that you must show that you had a substantial chance of receiving the contract. See Comint Sys. Corp. v. United States, 700 F.3d 1377, 1383 (Fed. Cir. 2012);Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308 (Fed. Cir. 2006). This requirement does not, however, mean that a protester must be “next in line” to invoke this court’s jurisdiction.

Notice Requirements

Once you are sure that you have intervenor status, you should file your notice of appearance with the respective court. The contracting officer should have notified bidders that a protest has been filed. Both GAO and Court of Federal Claims may permit other contractor firms to participate in the protest as “intervenors.” 4 CFR 21.0(b). See also information about filing a motion to intervene at the Court of Federal Claims.

Role of Intervenor’s Lawyer

The obvious answer is to protect the award on your behalf.  Intervenor defendant’s lawyer in a bid protest is to argue on your behalf and making a factual and legal showing why the contract award is legally sound.  A common problem arises when contractors represent themselves pro se and then later realize that the arguments and bid protest rules are too complicated. This can be a procedural mistake because the case may have advanced too far. The court may not allow an intervenor attorney to now make an appearance in the case. With that said, as the successful awardee, your goal is to not make contradictory arguments to the agency but to also realize that the contracting agency’s interests may not be the same as yours.  This is why having legal counsel to represent you can be beneficial.

• An experienced Court of Federal Claims or GAOwould scrutinize the case separately and then compare the agency’s position to strengthen your case.
• Oftentimes, the intervenor’s law will see the same legal points as the agency’s attorneys.

See How We Can Help You With a GAO or COFC Bid Protest

For additional information about how to intervene and defend in a bid protest, or for representation, call our bid protest intervenor lawyers for immediate help. at 1-866-601-5518.