Bloomberg Government subscribers get the stories like this first. Act now and gain unlimited access to everything you need to grow your opportunities. Learn more.
Your chances of winning are 10% and 13%. These are typical sustain rates for contractors challenging procurement decisions before the Court of Federal Claims and Government Accountability Office.
Despite these figures, a solid argument can stand a chance, particularly if the offeror chooses the right venue. But how to pick?
There are a number of factors to consider when determining how and where to proceed. Costs and deadlines are certainly important, but they’re not the only ones. Based on my 50-plus years of contract experience, here are the most important things savvy contractors should remember when it comes to choosing their venue and increasing their chances at launching a successful protest.
As the entity responsible for providing oversight of government spending, the GAO has become the go-to venue for contract protests, with the majority filed there in recent years. Its strict timeline for protests and typically quick turn-around time (usually 100 days) make it a likely choice for contractors with a case.
The GAO decision process is significantly faster than other venues, such as the Court of Federal Claims, which can take months and sometimes longer to render a final ruling. If a contractor is seeking a quick resolution to their protest (and therefore lower legal fees), the GAO is often the best option. This is especially true for smaller firms that may not have the bottomless resources of a larger contractor.
Perhaps the biggest benefit of filing with the GAO is the automatic stay the protest triggers. This is significant for incumbent contractors. It means they can hold onto their contract while they fight an unfavorable decision.
While the turn-around time and associated costs are often why contractors choose the GAO, the tight deadlines can be difficult to meet. To obtain a stay, initial filings are generally due within 10 days of the award decision or five days of a requested and required debriefing. This is why preparation is key. Firms may factor in the potential need for protests ahead of a decision and use a “red team” to identify competitors’ vulnerabilities. This will help ensure readiness if a protest is necessary.
Importantly, the GAO’s decisions aren’t binding. They may receive significant weight from the government agencies who made the contract decision in dispute, but the awardee of that contract might not give up without a fight. If that happens, the protest filed with the GAO to save time and money could end up in a lengthy court battle anyway.
Court of Federal Claims
Often, these battles that start at the GAO end up in the Court of Federal Claims (COFC), a special court that hears contract disputes between contractors and the government. Its authority includes binding decisions, and these can be appealed only to the Federal Circuit Court of Appeals.
The COFC’s process can be lengthy and expensive, and its opacity means protestors could be left guessing as to the final outcome for months and sometimes longer.
While the COFC grants a longer lead time for a protest than the GAO, the burden for an injunction is much higher, with traditional judicial requirements for motions. While time consuming, the evidence presented could also give the court reason to award damages in the form of bid preparation costs if they are warranted.
A strong legal case may be suited for the Court of Federal Claims. Because its decisions are binding, the COFC is a good venue to secure a final ruling that will make additional adjudication difficult. This route will often follow the lead of the GAO, so the likelihood of reversing an initial decision isn’t great.
Agency-level protests are the least formal of the three venues. They are conducted within the agency that awarded the contract and can be resolved quickly, usually within 35 days. However, these types of protests are on the losing end of a home-team advantage—the protester is basically asking the agency to reverse itself. There’s also no appeal process if the protesting company is dissatisfied with the outcome.
Despite the risk, it may be appropriate for contractors to pursue a protest through the agency if the complaint is relatively straightforward, like a simple clerical error or a misinterpretation of the solicitation. In this scenario, the agency may be willing to correct the error or issue a new solicitation to address the issue.
It also may be worth pursuing a protest through the agency if the relationship between the offeror and agency is already a good one. But in such a case, a balance between making one’s case and respecting the agency’s decision is crucial.
No matter where a contractor files a protest, it should be judicious in its claims and adhere to a strict analysis of the bid process. These venues don’t appreciate frivolous complaints, and the company that files too many is sure to aggravate the venue and contracting agency alike. That said, knowing when and where to file when the case is strong is a critical component of government contracting. It can mean the difference between a thriving and flailing business.
Subscribers can find related content at Bloomberg Government.
John Chierichella is the founder of Chierichella Procurement Strategies , a consultancy helping contractors pursue and perform Federal contracts and subcontracts. An alum of Shepard and Mullins, Chierichella has 50 years of bid experience and is nationally recognized by Chambers & Partners, Legal 500, and most recently by Who’s Who Legal as one of the most instantly recognizable names in government contracts law.
Write for us: Email IndustryVoices@bloombergindustry.com