Becoming a COFC or GAO Bid Protest Intervenor

Under bid protest regulations, meeting the intervenor legal definition in either a COFC or GAO bid protest case can make the difference between keeping company revenues or losing the award in a government protest action.

Not just anyone can intervene. About 15% of companies try to intervene but they fail for lack of statutory requirements. Why is this?

Intervenor Definition

An individual, or entity who is not already a party to an existing bid protest lawsuit but who makes himself or herself a party either by joining with the plaintiff or uniting with the defendant (federal government) in resistance of the plaintiff’s/ protestor’s claims.

Federal procurement law allows you as the awardee to become part of litigation which actually challenges the agency’s source selection decision.  By intervening, government contractors have the ability to make substantive arguments and not simply hope that the government prevails.   

• Failure to join the bid protest can become a risk because you are merely hoping that the government correctly justifies your award.  
• Although a protestor is challenging the government’s award decision, it is the contractor’s risk of losing additional revenues that is at stake.
• You can become an intervenor in a government protest either at the GAO level or U.S. Court of Federal Claims.

Bid Protest Regulations  Intervention Policies and Procedures 

Under bid protest policies and intervention procedure, when a government contractor receives notice of being the unsuccessful offeror, it may file a protest with Agency, GAO or Court of Federal Claims. As the awardee, you can meet the legal definition and have a right to protect your interests by filing a motion to intervene into the case. See important tips for government contract protest intervenors.

• Protest statutes allow awardees and other qualified persons to have virtually their day in court.
• You can make arguments and respond to protestor’s briefs just the agency can.
• Bid protest intervenors are subject to the same procedural notice requirements as other parties to the lawsuit.

Agency Notification: When the agency makes the award decision, it will notify you that you are successful offeror. However, the agency may not tell you about your right to intervene because it does not know of the upcoming protest. It is only when the agency learns of the protest that it will notify the awardee.

• In a bid protest case, the protestor is challenging the government’s award action.
• The agency is not legally obligated to protect your rights.

Interested Party Intervention Requirement under GAO Bid Protest Regulations: Before submitting a motion to intervene, you must also meet the interested party legal definition and intervenor definition under bid protest statutes. For example, successful awardees are typically allowed to intervene and protect their rights to the award.

However, COFC and GAO protest rules also allow others to become an intervenor if they can show prejudice from the Agency’s actions.  Contractors must show prejudice to demonstrate having a direct economic interest in the outcome of the protest decision.

Benefits of Intervention – Becoming a Bid Protest Intervenor at. GAO or COFC

Getting the government contract award means potential revenues for your company. Since GAO bid protest rules allow you to intervene, your government protest lawyer could defend the award with legal arguments that the agency attorney may not see during intervention. Looking at the principles of the government contract protest process, becoming a bid protest intervenor puts you in place to argue why GAO or another court should uphold the Agency’s decision to award the contract to your company.

• At the end of the day, GAO protest decisions or the U.S. Court of Federal Claims can rule in your favor although the agency may miss out on important legal arguments.
• As a bid protest intervenor, you can respond to motions and submit legal briefs to support your position. The courts take them into consideration.
• Bid protest intervention means that you get to side with the contracting agency’s decision to award the contract to you.
• Your lawyer can gain access to the protective order and develop a stronger defense.
• Contractors do not gain access to the protective order.

Risk of Not Becoming a Bid Protest Intervenor: Without intervening, you run the risk of allowing the bid protest to be sustained. However, statistics show that more bid protests are denied than sustained. In sum, failure to meet the intervenor definition in a GAO protest can increase the risk you of losing the contract.

• Remember that the agency’s priority may not be yours;
• Failure to intervene lowers the probability of keeping the contract award under the bid protest regulations.

To Avoid Costly Mistakes, Get a FREE Bid Protest Checklist

Next Step: For immediate help with meeting the courts’ government protest intervention definition, and to avoid the costly mistakes made by pro se contractors representing themselves, call our GAO intervenor and COFC bid protest intervention lawyers at 1-866-601-5518.