Shrinking federal budgets can mean greater competition for government contracts. If you feel that your business or firm was unfairly treated in the contract bid process, legal recourse is available to you. Here, the business and corporate attorney, James A. List, provides key information on government contract bid disputes.
What is a Government Contract Bid Dispute?
If a business owner or contractor feels that the local, state or federal government violated a contract procurement law or regulation by either its inaction or action, and that this violation negatively impacted their ability to either qualify for or be awarded a contract, they may submit a written objection specifying such, and request an evaluation to determine the validity of their claims. Most bid protests dispute either the issuance or revocation of a solicitation (offer to participate in the bid) or award, or request that another bidder’s solicitation or award be revoked.
Requirements for Filing
In order to file a bid dispute, you must be an “interested party:” one who is economically impacted by a bid award. If you are protesting a contract bid prior to an award being made, you must be an actual or prospective bidder. If you are protesting an award that has already been made, you must have a direct financial interest that would be affected by the award, usually meaning that you are at least eligible for the award, if not the next most likely candidate.
Avenues of Recourse
There are three options for seeking recourse, each of which can be employed should another fail. An agency level protest is the most basic option, where the disputer submits a written protest directly to the contracting officer whose decision they are protesting. Agency level protests are often inexpensive, generally do not require a lawyer and have relatively rapid resolution times (often 30 days or less), but they have a very low success rate. Agency protests may be advisable for gross and obvious errors, but more nuanced or complicated cases often benefit from further stages of intervention.
A Government Accountability (GAO) Protest is the next highest level of intervention. GAO protests can be more beneficial to disputers than agency protests, as agencies are legally obligated to provide relevant reports and records to the GAO for the disputer’s use: this is known as “limited discovery.” The Federal Acquisition Regulation (FAR) requires GAO protests to issue a decision within 100 days of an initial protest submission, and protests must be submitted within 10 days of the basis of the protest being identified. An attorney knowledgeable in business and government contract law is advisable in GAO protests. GAO protests have a higher rate of success than agency level protests, but can be procedurally difficult due to time constraints and complex regulations regarding information disclosure.
A Court of Federal Claims (COFC) Protest is the most serious of the three, and similar to any other federal court litigation, can be very expensive; an attorney is also necessary. While there are no specific time deadlines for COFC protests, timeliness is still advisable, and for cases challenging solicitation improprieties, the 10-day deadline of a GAO protest has effectively been adopted. COFC cases are often resolved in eight to 10 weeks, but litigation can take much longer. Judges have more flexibility in resolving disputes and making decisions: their judgement is also enforceable by law, while agency and GAO protests are only considered “recommendations.”
How James A. List Law Can Help
Government bids can be a huge source of revenue for various businesses and contractors, so mistakes and purposeful discrimination can be devastating to your bottom line. James A. List, LLC, is admitted as an attorney and counselor in the U.S. Court of Federal Claims, and has litigated government contracting actions at the federal, state and county levels. If you believe you have been unfairly treated in a government contract bid, and wish to seek legal recourse, call James A. List Law today for a free consultation.