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.
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.
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.