Agency bid protests can be worth the effort at times. However, there is downside. You have the right to file a federal agency protest when you find out that you are the unsuccessful bidder. You can also file a bid protest at the Government Accountability Office (GAO) or the U.S. Court of Federal Claims (COFC).
The cost for filing an agency bid protest is minimal when compared to filing at the GAO or COFC level.
As a result, many businesses are tempted to take this option. However, one still has to follow the required protest guidelines.
Is there an Automatic Stay Provision?
When filing agency bid protests, there is no application of the automatic stay rules. The Contracting Officer will review your protest letter and make a decision. If you are relying upon the automatic stay provision, you certainly do not want to file an agency protest.
Can You Appeal an Agency Protest?
After the contracting office gives a decision about your protest, you can still file a new GAO bid protest. However, government contractors must be careful to not introduce new reasons for the protest than those originally stated in the agency protest. The catch is that you have already established the record when you filed the original agency protest.
- In other words, although filing the protest at GAO is not a direct appeal of the agency decision, you do not want to bring up something to GAO showing that the contracting officer violated the law when you did not give the agency a chance to discuss it previously.
What are the Pros and Cons of Filing Agency Protests?
Pros: As stated earlier, contractors can save legal costs when they file an agency protest. There certainly is no requirement to hire an attorney. If the protest letter is strong, and the factual basis for the protest is irrefutable, the agency may choose to take action.
Cons: When filing an agency bid protest, you are actually asking the same agency to reverse its own decision. The chances of this happening are minimal at best. What typically happens is that the agency generally denies the protest either for procedural reasons or it believes that the contractor does not have a leg to stand on.
A problem arises for both a GAO protest attorney and the contractor when its decides to go GAO afterwards. The first problem is that the contractor now has to meet GAO’s ten-day filing deadline. If hiring a GAO protest attorney, the lawyer may find that the initial agency protest letter had no legal weight as previously written.
- It might be difficult to include new information in the upcoming GAO protest.
There are always positives and negatives to filing agency bid protests. Call one of our government contracts attorneys for more questions or representation. Call 1-866-601-5518.