How To Win a Bid Protest, Part 1: Winning the Protest Starts Before Award
Everybody does it, and everybody resolves never to do it again. After the rush to submit a proposal, you put it out of your head and get back to your regular work. After a few months, the notice that you’ve lost hits out of the blue. You request a debriefing, and the agency gives you some empty assurances that it complied with the RFP. You decide you need to protest. It takes a few days to interview different lawyers and wait for them to clear conflicts. Once they’re on board, they have to read all the materials, develop protest arguments, and draft the lengthy document that will set the course of the entire proceeding. But by then there are only a handful of days until the filing window closes at GAO.
Waiting until after award — or worse, after debriefing — to start preparing for a protest is a mistake. You need to start preparing for the possibility of a protest as soon as you think an award is imminent.
1. You will need a lawyer. Yes, companies can represent themselves in GAO protests. But since pro se protesters are at a clear disadvantage, few do. Protesters cannot get access to information about other companies’ proposals or evaluations; only an outside lawyer who is not involved in competitive decision making can. Without this information, it is impossible to challenge an award effectively.
2. You need to be ready for your debriefing. The debriefing is your chance to learn how and why the agency made its decision. But many contracting officers believe that the more information they disclose, the more they open themselves to a protest, and so they try to say as little as possible. But there are strategies, such as submitting written questions, that can help draw out the information you need. A lawyer will help you figure out what questions to make the most of your debriefing.
3. Protest deadlines are short and complicated. We summarize the various bid protest deadlines and jurisdictional rules on our website. They are complex and unforgiving, especially at GAO. There are typically only three days to ask for a debriefing. If you want a “stay” to prevent the awardee from beginning performance of the new contract (and you do), your GAO protest will be due ten days after the award date or five days after the debriefing — assuming that you have the type of procurement where a formal debriefing is required. (For example, Federal Supply Schedule procurements have “brief explanations,” not debriefings, so the deadline always runs from award date.) And rules differ by agency and protest forum. The deadlines hit — and options close — very quickly. You need help figuring this out fast.
4. It takes time to draft a good protest. In a typical lawsuit, you don’t need to know all your facts and arguments to file a complaint; you can make allegations based on mere “information and belief” and suggest a broad range of legal theories. A bid protest is different. The initial protest needs to lay out all of the arguments you can make as of the filing date and cite specific evidence for each. Failing to do so risks waiving arguments and having your protest dismissed as speculative. The initial protest filing must be detailed, and it is often lengthy. Drafting a good protest requires a full understanding of the facts, the solicitation, the procedural history, your proposal, the award decision, and the debriefing. It requires creative thinking to identify every argument that must be raised. And it requires work on your end: You need to assemble documents, teach counsel the facts, find out what you can about the awardee, and assemble a team that can rapidly answer counsel’s questions.
Although bid protest lawyers are known for working quickly, the more time you give them to learn the facts, marshal evidence, and develop arguments, the stronger the protest they draft will be. If your legal team is in place before award, they can start getting up to speed before the filing clock starts ticking.
The bottom line: The most prepared companies monitor their active procurements and engage protest counsel as soon as it appears an award is imminent. By contrast, waiting until after award to start finding counsel risks squandering time exactly when deadlines are shortest. Waiting may mean you go through the debriefing without counsel’s guidance and fail to get needed information. And it reduces the time available to prepare an effective protest.