Bid protests are formal challenges to government procurement decisions. Understanding protest procedures helps contractors protect their interests when they believe an award decision was improper.
What Is a Bid Protest?
A bid protest is a formal objection to a procurement process or award decision. Protests challenge the legality, fairness, or propriety of government contracting actions.
When Protests Are Appropriate
Legitimate Grounds:
- Improper award criteria
- Biased evaluation
- Flawed specifications
- Violation of procurement rules
- Conflict of interest
- Improper rejection of bid
Not Appropriate Grounds:
- Simply losing the competition
- Disagreement with evaluation judgment
- Price differences alone
- General dissatisfaction
Federal Bid Protest Forums
Government Accountability Office (GAO)
The GAO is the most common forum for federal contract protests.
Jurisdiction:
- Challenges to federal solicitations
- Award decisions
- Contract modifications (in some cases)
Key Features:
| Feature | Detail | |---------|--------| | Filing deadline | 10 days after basis known | | Automatic stay | Yes (if timely filed post-award) | | Decision timeline | 100 days | | Legal representation | Recommended but not required |
GAO Protest Process:
- Filing - Protest submitted to GAO
- Notice - Agency and intervenors notified
- Agency Report - Due within 30 days
- Comments - Protester responds
- Hearing - If requested (optional)
- Decision - Within 100 days
Court of Federal Claims
The COFC provides judicial review of federal contract disputes.
Jurisdiction:
- Federal procurement challenges
- Alternative to GAO
- Appeals of agency decisions
Key Features:
| Feature | Detail | |---------|--------| | Filing deadline | Varies (statute of limitations) | | Automatic stay | No (must request) | | Decision timeline | No set timeline | | Legal representation | Required |
Agency-Level Protests
Some agencies have internal protest procedures.
Characteristics:
- First-level review
- Typically faster than GAO
- May be prerequisite to GAO
- Agency decision-maker
State and Local Protest Procedures
State Procurement Protests
State procedures vary significantly:
Common Elements:
- Administrative protest to agency
- Appeal to administrative board
- Judicial review available
- Varying deadlines
Example: California
- Protest to awarding agency
- Appeal to Department of General Services
- Court review available
- Short deadlines (5-10 days common)
Local Government Protests
Municipal and county procedures:
Typical Process:
- Protest to procurement officer
- Appeal to department head
- Administrative hearing possible
- Limited judicial review
Grounds for Protest
Pre-Award Protests
Challenge solicitation terms before award:
Common Grounds:
- Restrictive specifications
- Ambiguous requirements
- Improper evaluation criteria
- Organizational conflicts of interest
- Improper bundling
Timing:
- Must file before bid/proposal due date
- Once terms are known or should be known
Post-Award Protests
Challenge award decisions:
Common Grounds:
- Evaluation errors
- Failure to follow stated criteria
- Improper discussions
- Disparate treatment
- Unequal information
- Awardee not meeting requirements
- Improper price evaluation
Filing Requirements
Essential Protest Elements
| Element | Description | |---------|-------------| | Identification | Protester, solicitation, contract | | Timeliness | Filed within deadline | | Standing | Interested party status | | Grounds | Specific legal and factual bases | | Relief | What remedy you seek | | Certification | Required signatures |
Supporting Documentation
Include relevant evidence:
- Solicitation documents
- Your proposal/bid
- Agency communications
- Debriefing notes
- Public award information
- Legal authority
Common Filing Mistakes
- Missing deadline - Strict timelines apply
- Incomplete grounds - Must state specific violations
- Lack of prejudice - Must show harm to your position
- Waived issues - Didn't raise during procurement
- Wrong forum - Filed in inappropriate venue
Protest Timelines
GAO Filing Deadlines
| Protest Type | Deadline | |--------------|----------| | Pre-award (solicitation defect) | Before bid/proposal due date | | Post-award | 10 days after award or debriefing | | Debriefing | 10 days after debriefing | | Newly discovered ground | 10 days after discovery |
State/Local Deadlines
Vary widely:
- 5-30 days typical
- Some as short as 3 days
- Check specific jurisdiction
- Miss deadline = waiver
The CICA Stay
Automatic Stay Provisions
Post-award GAO protests trigger automatic stay of performance:
Requirements for Stay:
- Protest filed within 10 days of award
- Or within 5 days of debriefing
- Filed with GAO (not COFC)
Stay Effects:
- Contract performance suspended
- Stay lasts through GAO decision
- Agency may override (rare)
Override Authority
Agencies can override stays for:
- Urgent and compelling circumstances
- Best interests of United States
- Documented in writing
Debriefings
Requesting Debriefings
Post-award debriefings provide valuable information:
Federal Requirements:
- Request within 3 days of award notice
- Agency must provide within 5 days
- Extended debriefing rights (best value)
Information Provided:
- Your evaluation ratings
- Overall ranking (if applicable)
- Rationale for award decision
- Summary of awardee's proposal (limited)
Using Debriefing Information
Debriefings help assess protest potential:
- Identify evaluation errors
- Understand competitive position
- Discover potential grounds
- Make informed protest decision
Debriefing Limitations
Protected information:
- Competitor pricing (usually)
- Proprietary methods
- Trade secrets
- Specific proposal content
Protest Strategy
Decision to Protest
Consider carefully:
Factors Favoring Protest:
- Clear violation of procurement law
- Significant contract value
- Strong prejudice argument
- Good supporting evidence
- Willing to invest resources
Factors Against Protest:
- Weak legal grounds
- Small contract value
- Relationship concerns
- Limited evidence
- Deadline issues
Preparing Your Protest
Investigation:
- Review all procurement documents
- Analyze evaluation results
- Compare to stated criteria
- Research applicable law
- Identify specific violations
Drafting:
- State facts clearly
- Cite applicable law
- Explain prejudice
- Request specific relief
- Organize logically
During the Protest
Active Management:
- Review agency report thoroughly
- File timely comments
- Request hearing if beneficial
- Consider supplemental protests
- Evaluate settlement options
Outcomes and Remedies
Possible GAO Decisions
| Outcome | Effect | |---------|--------| | Sustained | Protest upheld, remedy recommended | | Denied | Protest rejected on merits | | Dismissed | Procedural issues prevent decision |
Available Remedies
Recommendation Options:
- Re-evaluation of proposals
- New solicitation
- Contract termination
- Award to protester
- Proposal revisions opportunity
- Bid/proposal costs reimbursement
Attorney Fees
In some cases:
- GAO recommends bid/proposal costs
- No attorney fees at GAO
- COFC may award attorney fees
- Rare in practice
Intervenors
Role of Intervenors
The awardee may intervene to defend the award:
Intervenor Rights:
- Access to protest record
- File comments
- Participate in hearing
- Present argument
Intervenor Strategy:
- Defend evaluation as proper
- Challenge protester's standing
- Argue lack of prejudice
- Support agency position
After the Protest
If You Win
Follow-Up Actions:
- Monitor agency compliance
- Participate in corrective action
- Seek bid/proposal cost recovery
- Prepare for re-competition
If You Lose
Options:
- Accept decision
- Request reconsideration (very limited)
- Appeal to COFC (from GAO)
- Learn for future
Relationship Considerations
Protesting affects relationships:
- Agency perception
- Competitor relationships
- Industry reputation
- Future opportunities
Balance protest rights with relationship value.
Common Protest Issues in Construction
Responsive/Responsible Determinations
- Bid bond sufficiency
- Subcontractor listing requirements
- License and registration
- Safety record issues
Technical Evaluation
- Experience evaluation errors
- Key personnel assessment
- Management approach scoring
- Past performance evaluation
Price Evaluation
- Mathematical errors
- Unbalanced pricing issues
- Cost realism concerns
- Price reasonableness
Best Practices
Before Bidding
- Understand protest rights
- Document procurement issues
- Clarify ambiguities during procurement
- Know filing deadlines
During Procurement
- Track potential issues
- Request clarifications
- Document interactions
- Preserve evidence
Post-Award
- Request debriefing promptly
- Evaluate protest merits honestly
- Decide quickly (deadlines are short)
- Engage experienced counsel if proceeding
Next Steps
Believe you have grounds for protest?
- Assess the situation - Is there a real violation?
- Check deadlines - Time is critical
- Gather documentation - Build your record
- Consult counsel - Complex protests need expertise
- Make informed decision - Weigh costs and benefits
Related Articles
- How to Write Winning Construction Bid Proposals
- Low Bid vs Best Value Procurement
- Pre-Qualification Requirements for Government Contracts
Frequently Asked Questions
How much does a bid protest cost? Costs range widely. Simple protests may cost $10,000-30,000. Complex protests with hearings can exceed $100,000. GAO filing is free.
What are my chances of winning? GAO sustains approximately 15-20% of protests decided on merits. Many result in corrective action before decision.
Will protesting hurt future opportunities? Possibly, depending on agency relationship. Meritorious protests are generally acceptable. Frivolous protests damage reputation.
Do I need a lawyer? Recommended for most protests. GAO allows self-representation but complex issues benefit from legal expertise.
How long does a GAO protest take? GAO's goal is 100 days from filing. Expedited procedures available in some cases.
