With just a week to go in FY24, federal agencies are rushing to spend those "use it or lose it" dollars. And while there are a number of reasons that support filing a bid protest when you're an unsuccessful offeror – this time of year or at any other time – what about when you win the contract? Well, if your company is awarded a contract and an unsuccessful offeror challenges your win, you should consider intervening in the bid protest.
Virtually every federal contractor knows how difficult it is to win a government contract. Indeed, many contractors often start pursuing larger contracts or vehicles well in advance of the final solicitation being released. And, while each contractor’s BD and capture strategies vary, they typically share two traits: time and money. Given the financial burden and significant hurdles in between each contractor and a federal contract, it is often quite exhilarating to receive that notice of award email. In that situation, awardees will often ponder (in between the excitement of winning, of course) what will happen if a disappointed bidder files a protest challenging that win and, if so, whether they should intervene.
To begin, and notwithstanding the stiff competition for federal contracts, it's worth noting that the bid protest process involves complex technical and procedural issues, which means that disappointed bidders will often hire adept outside counsel to litigate their bid protests. In light of the reality that protests are a form of contested administrative litigation, protesters should consider intervening on that basis alone. After all, the protester is trying to take away your hard-earned contract. But beyond that point, and as discussed below, there are seven other reasons to intervene in bid protests.
1. Agencies Often Anticipate Intervenors
Federal contracting is complex and competitive. In many cases, contracting officials understand that there is a correlation between the award value and the likelihood of protest. After all, bid protests are an inherent part of the procurement process (and indeed they are baked into the acquisition timeline) and the larger and more complex the procurement, the more time and money contractors often will spend to position themselves for award. Agencies understand this reality and often anticipate that, when bid protests are inevitably filed, awardees will likely intervene. Because intervenors are often expected, agencies typically do not view them in a negative light. Therefore, optical or political considerations shouldn't deter awardees from intereveing in a bid protest.
2. Defend the Award
Just because the agency awarded the contract does not mean that it will defend the bid protest (it may elect to take corrective action) or make all the arguments that the awardee would like the agency to make. After all, the agency’s interests are typically broader than any individual awardee. Intervening provides awardees with an opportunity to defend the protest and make their case that the award must stand (e.g., request dismissal in full or in part, articulate the strengths of their technical approach or price advantage, and provide additional legal and factual bases in support of the agency’s decision). Indeed, many procuring agencies welcome intervenors because awardees can bolster the agency’s defense by making different (or perhaps more nuanced) arguments or by making more resources available to the agency’s defense of the procurement.
3. Limit the Agency Report
While protests at the Court of Federal Claims (“COFC”) are subject to a broader record, the Government Accountability Office’s (“GAO”) regulations are more restrictive because they require agencies to produce only “relevant documents” in a bid protest. At GAO, intervening provides awardees with an opportunity to request dismissal of protest grounds and to advocate for a more limited record that what the protester requested or the regulation provides, thereby narrowing or precluding the bases for potential supplemental protest arguments that the protester may unearth during its review of the agency report. Needless to say, the fewer the arguments that are available to a protester, the greater the likelihood the agency will successfully defend their award decision, since the majority of GAO bid protests are won not by initial bid protest grounds but by supplemental protest grounds unearthed in the agency report.
4. Protective Order
After a bid protest is filed, both GAO and COFC will typically issue a protective order, which prohibits the disclosure of confidential, proprietary, or source-selection sensitive information to individuals that are not admitted to the protective order. Intervening allows the awardee’s outside counsel to “get under the hood” and see what is transpiring during the course of the protest, as only those admitted to the protective order will be able to view unreacted documents that are filed in connection with the protest. Further, such access to the record will allow counsel, in working with agency counsel, to augment the agency’s existing arguments or submit additional arguments in defense of the protest. These efforts may make the difference between the agency taking early corrective action, which does not benefit the intervenor, or defending the protest on the merits, which typically does.
5. Protect Confidential Information
In defending the bid protest, the agency may not closely scrutinize documents and filings with an eye toward protecting the awardee’s confidential or proprietary information. Intervening provides awardees with an opportunity to have their outside counsel, that are admitted to the protective order, ensure that their confidential or proprietary information is appropriately protected from becoming part of the public record. Needless to say, the release of confidential or proprietary information can competitively harm the awardee on both current or future opportunities and undo years of time and capital-intensive business capture and business development efforts.
6. Shape Corrective Action
In many cases, the agency will decide to take voluntary corrective action in response to a bid protest. GAO’s annual bid protest report indicates that corrective action happens in a considerable number of protests. Corrective action comes in different forms, ranging from reevaluations of proposals (in part or in whole) to reopening the procurement and permitting offerors to submit revised proposals. As the latter result generally disadvantages the awardee based on information that may have been made available during the protest process to the protester but not the awardee, the importance of the form of corrective action should not be overlooked. To that end, intervening provides the awardee with an opportunity to advocate for (and potentially shape) a particular course of corrective action such as reevaluating only a specific issue as opposed to a full reevaluation and abstain from reopening the procurement. Again, the narrower the remedy afforded a protester, the better the chance an awardee will ultimately retain its award.
7. Right to Intervene
Both GAO's and COFC’s bid protest rules allow awardees to intervene in bid protests. Therefore, and in addition to other reasons, awardees should seize the opportunity to intervene and protect your hard-earned wins.
TAKEAWAY
With stiff competition for federal contracts, disappointed offerors will often utilize the bid protest system to challenge agency evaluations and source selection decisions in hopes of overturning an award decision. This is particularly true where a procurement is strategically significant or where the contract value is high. When facing a bid protest, awardees should intervene to defend their awards (or, at minimum, to keep an eye on the protest process) and to protect their many other interests during the protest process. After all, it is your award that the protester wants to strip away, and awardees should take advantage of all the tools at your disposal to prevent that from happening.
