Government Contract Protest Tips For Intervenors

In any government contract bid protest, and under bid protest intervenor law, any interested party, including the awardee, can intervene and protect their rights to the contract. The Court of Federal Claims (COFC) does not have very many statutory provisions for intervenor law. GAO bid protest rules typically set the standard for intervenors.

I. Introduction

Government contract bid protests are a common occurrence in the world of federal contracting. These protests provide an opportunity for bidders who were not awarded a contract to challenge the procurement process and seek a remedy from the contracting agency. Intervenors, or third-party participants in a bid protest, play an important role in these cases. This outline will discuss government contract bid protest tips for intervenors and how to protest a government contract award.

II. Understanding the Government Contract Protest Process

Before diving into specific tips for intervenors, it’s important to understand the protest process. In general, the protest process involves a challenge to the award of a government contract. The protest can be filed by an unsuccessful bidder or another interested party who believes that the contracting agency failed to follow the proper procurement procedures, such as the evaluation of proposals, the award decision, or the solicitation process.

Intervenors, as third-party participants, have the ability to enter the case to support either the protester or the contracting agency. Intervenors typically have a vested interest in the outcome of the protest, such as a direct or indirect interest in the contract award or the procurement process. They can provide additional evidence or legal arguments to support their position.

Tips for Intervenors in Government Contract Bid Protest Cases

When it comes to intervening in a bid protest case, there are several tips  on how to protest a government contract award that can help intervenors be successful. These tips include:

1. Conduct a thorough review of the solicitation and the bid
Intervenors should carefully review the solicitation and the bids submitted by all parties involved. This includes a review of the evaluation criteria, the evaluation process, and the award decision. By understanding the details of the procurement process, intervenors can identify potential issues that may be relevant to the protest.

2. Understand the grounds for protest and the legal standards
Intervenors should have a solid understanding of the legal grounds for protest and the legal standards that must be met to successfully challenge the award decision. This includes an understanding of the relevant statutes, regulations, and case law. By having a strong legal foundation, intervenors can develop a compelling argument that is more likely to be successful.

3. In the government contract protest process develop a strong legal argument and supporting evidence
Intervenors should work with their legal team to develop a strong legal argument that supports their position. This includes identifying the relevant facts and evidence that support their argument, as well as anticipating potential counterarguments from other parties involved in the case.

4. Consider the potential impact on the intervenor’s business interests
Intervenors should consider the potential impact that the outcome of the protest may have on their business interests. This includes an assessment of the financial, reputational, and operational impacts that may arise as a result of the protest.

5. Be prepared to negotiate and seek alternative solutions
Intervenors should be prepared to negotiate with other parties involved in the case and seek alternative solutions that are mutually beneficial. This may involve exploring the possibility of a settlement or compromise that addresses the underlying issues in the procurement process.

What are Common Steps for Filing a Bid Protest?

The first step in when looking at grounds for protesting government contract award. is to review the solicitation and the relevant requirements. This involves examining any applicable laws, regulations, procedures, and policies that may be pertinent to the case. Once these documents have been reviewed it is important for intervenors to consider their standing as an interested party and determine if they meet the qualifications to file a protest.

The second step is to research the other parties involved in the bid protest case. This includes obtaining contact information, details of past contracts, and any other relevant information. The third step in filing a bid protest is to prepare all necessary documents for submission. This includes drafting various forms or affidavits that may be required and writing a complaint letter detailing the grounds for your protest. Finally, it is important to submit the protest in a timely manner and ensure that all required documents have been properly completed. By following these steps, an intervenor can increase their chances of success with a bid protest case.

• Articulate where and how the agency failed to act reasonable
• Articulate how did the agency violate procurement law
• Show if applicable, where the contracting officer or agency abused its discretion
• Be as detailed as possible
• Do not make an argument that simply translates into a disagreement with the agency
• Find a bid protest attorney that understands the process and the specific concerns that you have.

Best Practices for Intervenors in Bid Protest Cases

In addition to these specific tips, there are several best practices that intervenors should keep in mind when participating in a bid protest case. These best practices include:

1. Engage legal counsel with experience in government contract bid protests
Intervenors should work with experienced intervenor lawyers who have experience in government contract bid protests. This can help ensure that the intervenor’s legal arguments are sound and that they are well-prepared to navigate the complexities of the protest process.

2. Stay informed and up-to-date on relevant legal developments
Bid protest Intervenors should stay informed and up-to-date on relevant legal developments that may impact their case. This includes monitoring changes to relevant statutes, regulations, and case law

3. Maintain good relationships with the contracting agency and other stakeholders
Intervenors should maintain good relationships with the contracting agency and other stakeholders involved in the case. This includes engaging in open and transparent communication, as well as demonstrating a willingness to work collaboratively towards a resolution.

4. Ensure compliance with applicable laws, regulations, and ethical standards
Intervenors should ensure that they are in compliance with all applicable laws, regulations, and ethical standards. This includes avoiding conflicts of interest, maintaining confidentiality as required, and following all rules and procedures governing the protest process.

5. Consider the potential costs and benefits of intervening in a bid protest case
Intervenors should carefully consider the potential costs and benefits of intervening in a bid protest case. This includes an assessment of the potential financial, reputational, and operational impacts of the case, as well as the potential for success.

Do You Have Legal Standing to Intervene?

Intervenors in any government protest must still meet the interested party requirements. After the intervention process is complete, your attorney may seek admission to the protective order.

• Immediately after receiving notice of the protest from GAO, the government contracting agency must give notice of the protest to the awardee if an award has been made.
• If there has been no award, government contracting agencies must notify all bidders or offerors who have a reasonable chance of receiving an award.

GAO may let other firms take part in the government protest as “intervenors.” This is governed by 4 CFR 21.0(b). If the award has been made, GAO permits only the awardee to intervene in the government contract protest. If the award has not been made, and you are a contractor seeking to intervene, you should advise GAO and the other interested parties, and then contact GAO to learn whether they will be permitted to intervene. 

Your notice of intervention into a government contract bid protest could simply be a brief letter that includes the name, address, and telephone and fax numbers of your company or intervenor’s lawyer.

If I File a Bid Protest, Do I Have to Worry About the Awardee Intervening? If I am the Awardee, Can I Intervene?

The reason for anyone to intervene in a government contract protest si to protect what rights you do have. Second, if you decide not to enter into the pending case, you can find yourself stuck with the court’s ruling. When the awardee is the subject of the bid protest, the contractor has to make a decision whether or not to intervene.

Can Anyone Intervene?

As a general rule, the successful awardee can intervene as a matter of right. This is true because if the court rules against the government’s award decision, then the awardee can lose millions of dollars in revenue. Therefore, the awardee has standing to enter into the case as an intervenor.

When looking at how to protest a government contract award, if there has been no award, an intervenor can be someone who has an interest, could be a prospective bidder but for the alleged error, can also intervene.

Intervention in a federal bid protest case only applies at the GAO and Court of Federal Claims levels. The contractor or its government contract protest lawyer would normally submit a request/notice of intervention as a courtesy to the court.

The COFC Rules 24(a)-(b) allow a contractor or interested party to intervene in a case as a matter of right or permissively. The intervention of right is allowed where the intervenor can show its interests relate to the property or transaction that is the subject of the proceedings, and its interests are so situated that disposition of the action may impair or even impede its ability to protect that interest. Permissive intervention is allowed where, on a timely showing, there is an unconditional right to intervene by a federal statute, or there is a claim or defense that shares with the main action a common question of law or fact, and where intervention will not delay or prejudice the adjudication of the original parties’ rights.

How to Intervene in a Bid Protest Case?

Contractors or interested parties can write a letter to the GAO giving notice of intervention. However, to intervene at the Court of Federal Claims, companies or there bid protest defense lawyers should file a motion to intervene either as of right or permissive intervention.

Do You Need An Attorney to File a Government Protest or Participate as an Intervenor?

There is no requirement neither as the filing party nor as an intervenor, to hire an attorney to represent you in a government contract protest. However, the downside is that if you file on your own, you will not get access to the protective order. Without such access, your chances of effectively protecting your rights are minimized because you would not be able to point to supporting evidence that supports your initial protest.

• Intervenors without counsel will only receive redacted versions of the Agency Record.

Conclusion

In conclusion, intervenors play an important role in government contract bid protest cases. By following these tips and best practices, intervenors can be well-prepared and strategic in their approach to how to protest a government contract award. This can help ensure a more successful outcome for all parties involved, while also promoting fairness, transparency, and accountability in the procurement process.

For additional information on filing a  government protest or establishing your company as an intervenor, call our bid protest lawyers at 1-866-601-5518.