GAO Bid Protest, COFC & SBA Size Standard Lawyers 

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Watson & Associates, LLC represents companies from Washington, DC and all states in the various stages of the bid protest process. Members of our federal government contract law practice group services small businesses and large DOD contractors on a daily basis with bid protest analysis, filing a GAO bid protest, Court of Federal Claims (COFC) protests, agency level protests or, in a intervening on behalf of the successful bidder. As bid protest lawyers, we handle protest related to Buy American Act, Best Value determinations; improper discussions, competitive range decisions; debriefing information; Service Contract Act violations; small business set-asides and more.

As you contemplate filing a bid protest to any forum, businesses should first consider the pros and cons to filing. Second, decisions must be made quickly.  Third, businesses must ensure that they understand the bid protest procedures and the process. Having an experienced bid protest attorney can save a significant amount of headaches and stress.

• Get professional legal analysis on the merits of your case?
• Avoid filing in the wrong forum
• Competitive rates
• Aggressive representation
• Get help from experts that have worked for federal agencies
• Get access to agency source selection (strengthens your case)
• Get defense / intervention help from attorneys that understand the process
• Free initial consultation

Bid Protest Services

Our firm offers representation with Court of Federal Claims bid protests and GAO protests involving the following types of recurring issues:

• Non-responsive bids
• Pre-award protest (improper NAICS Code and overly restrictive)
• The Government’s unequal treatment of bidders
• Bid mistakes
• The Government’s failure to conduct meaningful discussions
• Best value procurements, including cost/technical trade-offs
• Cost and/or price realism analyses
• Past performance evaluations
• Organizational and/or personal conflicts of interest
• Restrictive specifications
• Deviations from the announced evaluation criteria
• Unbalanced bidding
• Cardinal changes
• Failure to consider information submitted in your bid proposal
• Improper technical evaluations
• Unsupported trade-off decisions
• Failure to properly apply evaluation criteria set forth in the solicitation
• Failure to conduct meaningful discussions
• Conflict of interest
• Unduly restrictive solicitations
• Improper best value determinations …and more.

What is a bid protest?

A bid protest is a challenge to the award or proposed award of a contract for procurement of goods and services or a challenge to the terms of a solicitation for such a contract. A bid protest is commonly used by disappointed companies to challenge the award of government contracts or the terms and conditions of the solicitation. As compared to commercial contracts, you now have rights under federal procurement law. However, there are certain legal requirements that you must meet to exercise those rights. If you are contemplating filing GAO protests to a recent award, tough decisions must be made in a short amount of time. You also want to know the legal merits of your case. Having am experienced government contracts attorney on your team can simplify the decision process.  Bid protests are filed at the procuring agency, the U.S. Court of Federal Claims or, most frequently, the U.S. Government Accountability Office (GAO). The value of successfully winning or defending a bid protest can make the difference between losing or winning federal projects in the millions.

Overview of the Bid Protest Process

The bid protest process at GAO begins with the filing of a written protest. Unless the protest is dismissed because it is procedurally or substantively defective (for example, the protest is untimely or the protest fails to clearly state legally sufficient grounds of protest), the agency is required to file a report with GAO responding to the protest and to provide a copy of that report to the protester. The protester then has an opportunity to file written comments on the report.

Other parties may be permitted to intervene, which means that they will also receive a copy of the report and will be allowed to file written comments on it. After the record is complete, GAO will consider the facts and legal issues raised and will issue a decision, a copy of which will be sent to all parties participating in the protest. GAO may sustain the protest (that is, find that the agency violated a procurement statute or regulation and that the violation prejudiced the protester), in which case, GAO will recommend appropriate corrective action.  GAO may deny the protest or may dismiss the protest without reviewing the matter. GAO will issue its decision not later than 100 days from the date the protest was filed. The exact date on which GAO issues the decision depends on the urgency of the procurement, the complexity of the factual and legal issues raised in the protest, and GAO’s workload.

When must a protest be filed?

In general, a protest challenging the terms of a solicitation must be filed before the time for receipt of initial proposals. A bid protest challenging the award of a contract must be filed within 10 days of when a protester knows or should know of the basis of the protest (a special case applies where, under certain circumstances, the protester receives a required debriefing). Please be aware that the regulations regarding the timely filing of protests depend on the circumstances of each case and are strictly enforced.

Who can file a bid protest at the GAO?

Only “interested parties” may file protests. In the case of a solicitation challenge, an interested party is generally a potential bidder for the contract. In the case of a contract award challenge, an interested party is generally an actual bidder that did not win the contract. In addition, other factors, such as the bidder’s standing in the competition and the nature of the issues raised may affect whether it qualifies as an interested party.

Withholding of award and suspension of contract performance.

Where a protest is filed with GAO, the agency may be required to withhold award and to suspend contract performance. The requirements for the withholding of award and the suspension of contract performance are set forth in 31 U.S.C. 3553(c) and (d); GAO does not administer the requirements to stay award or suspend contract performance under CICA at 31 U.S.C. 3553(c) and (d).

GAO Protest Remedies

(a) If GAO determines that a solicitation, cancellation of a solicitation, termination of a contract, proposed award, or award does not comply with statute or regulation, it shall recommend that the agency implement any combination of the following remedies:

(1) Refrain from exercising options under the contract;

(2) Terminate the contract;

(3) Recompete the contract;

(4) Issue a new solicitation;

(5) Award a contract consistent with statute and regulation; or

(6) Such other recommendation(s) as GAO determines necessary to promote compliance.

Do You Need to Intervene or Defend Your Award?

As the successful bidder, you tentatively have a new contract in your hands. It is imperative to understand that having a bid protest law firm to intervene on your behalf means that someone is protecting your rights. The government’s attorneys make arguments to justify the agency actions. You must also assertively protect your own rights. A bid protest could be won based upon the arguments of the intervenor (your lawyer). Having a legal expert on your team can be helpful. Why is this? According to the 2010 GAO statistics, you stand a 19% chance of losing the contract. As the successful bidder, you do not want to be part of this statistic.

Get Professional Legal Analysis on the Merits of Your Protest

  We have broad experience and skill in government contract protests: members of our federal contracting practice group have actually worked for federal agencies. They understand the habits of source selection teams, and the mistakes that contracting officers make. When filing, or defending (intervenor) a GAO protest on your behalf, we actually build your case on specific facts and case law. We simply do not engage in guesswork when it comes to bid protests.

Bid protest defense / intervenor: if you are the successful bidder, you are now faced with possibly losing the contract. GAO bid protest rules allow you to state your position by intervening. A big mistake that companies make is to allow their corporate attorney to intervene. Unless, your corporate attorney has experience in government contracts law, you might want to seriously consider the implications. Federal procurement law is very complex and regulated. Small businesses, large DOD contractors, and their attorneys frequently call upon Watson & Associates to intervene and defend contract awards at the agency or GAO level. Always remember, that the agency has no responsibility to defend you rights in a bid protest.

What cannot be heard at GAO?

GAO does not hear all cases. An easy way for you to get your bid protest thrown out is to file case that GAO cannot hear. They include:

• Contract administration. The administration of an existing contract is within the discretion of the agency.
• Small Business Administration issues. (1) Small business size standards and North American Industry Classification System (NAICS) standards. Challenges of established size standards or the size status of particular firms, and challenges of the selected NAICS code may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(b) (6).
• Small Business Certificate of Competency Program.
• Procurements under sec. 8(a) of the Small Business Act.
• Affirmative determination of responsibility by the contracting officer.
• Procurement integrity.
• Protests which lack a detailed statement of the legal and factual grounds of
• Subcontract protests.
• Suspensions and debarments.
• Competitive range. GAO will not consider protests asserting that the protester’s proposal should not have been included or kept in the competitive range.

Experience

Watson & Associates’ services involve extensive experience in federal procurement and represents contractors across the country and overseas in the various disputes arising from doing business with the federal government. This comprehensive knowledge and experience arms our bid protest lawyers with sound skill to advise you on the merits of your specific case.

• Our lawyers conduct extensive review and legal authority for each and every bid protest assigned to our law firm. We simply don’t practice government contract law by guess work.
• When we intervene on your behalf, we understand that the stakes are high. Therefore, we aggressively seek to protect your interest.  

GAO or Court of Federal Claims?

The United States Court of Federal Claims has jurisdiction to hear bid protest cases under the Tucker Act, 28 U.S.C. Section 1491(b).  The Tucker Act, as amended by the Administrative Dispute Resolution Act of 1996, Pub.L. No. 104-320 Section 12(a)-(b), waives sovereign immunity for claims against the United States and provides that the US Court of Federal Claims may hear actions by an interested party “objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or proposed procurement.”

You can utilize the COFC bid protest jurisdiction to review agency action and to even to a new claim and a GAO Protest. This bid protest jurisdiction of the Court includes reviews of agency corrective action taken in response to GAO protests.  The Court will review the action to determine whether it is reasonable under the circumstances.

COFC Decisions

HP Enterprise Services, LLC v. United States, No. 11-888 C (Apr. 5, 2012) (successful post-award protest; agency awarded to other than lowest priced offeror on the basis of unstated evaluation criterion used to disqualify protester’s proposal; protester’s interpretation of latent solicitation ambiguity was reasonable).

The Electronic On-Ramp, Inc. v. United States, No. 12-22 C (Apr. 2, 2012) (successful pre-award protest against Government’s rejection of proposal as late despite the fact that electronic copy had been delivered on time and the only problem with delivery of the hard copy was the Government’s delay after the plaintiff’s courier made it to the security checkpoint on time).

GTA Containers, Inc. v. United States, No. 11-606 C (Feb. 6, 2012) (successful post-award protest; awardee’s submission to SBA for purposes of post-award size determination indicated it did not intend to subcontract with firm it had identified in its bid as a subcontractor, on the basis of which representation the agency had evaluated awardee’s past performance).

GAO Decisions

Relaxation of Requirements

Raytheon Tech. Servs. Co. LLC, B-404655.4 et al., Oct. 11, 2011, 2011 CPD ¶ 236 (omission in awardee’s proposal constituted a material omission that rendered the proposal unacceptable. Protest was sustained where the solicitation required proposal of loaded labor rates to be used as ceiling rates in future task order competitions and awardee failed to propose rates for 20 labor categories). 

Unequal Treatment 

Brican Inc., B-402602, June 17, 2010, 2010 CPD ¶ 141 (protest was sustained where the agency evaluated the awardee’s and the protester’s proposals unequally by crediting the awardee for the experience and past performance of a specialty subcontractor, but not similarly crediting the protester, which proposed the same subcontractor).

Douglas County Fire Dist. #2, B-403228, Oct. 4, 2010, 2010 CPD ¶ 239 (agency unreasonably evaluated the protester’s quotation with a “fail” rating for the geographic coverage factor for lack of a plan to cover the geographic area where the awardee’s quotation did not include any more specific information than the protester’s quotation, which was assigned a “pass” rating under the geographic coverage factor). 

Agency Failed to Follow Evaluation Criteria 

Raytheon Co., B-404998, July 25, 2011, 2011 CPD ¶ 232 (protest was sustained where the agency assessed a weakness under the experience factor, which required the submission of five references, whenever an offeror’s reference did not have one of the six areas of the experience required by the solicitation, even though the solicitation only required that offerors’ references ‘collectively’ demonstrate experience in the required areas). One Largo Metro LLC; Metroview Development Holdings, LLC; King Farm Associates, LLC, B-404896 et al., June 20, 2011, 2011 CPD ¶ 128 (protest was sustained where the agency failed to consider both the variety and quantity of amenities offered under the access to amenities subfactor, as required by the solicitation). Mission Essential Personnel, LLC, B-404218.2; B-404218.3, June 14, 2011, 2011 CPD ¶ 120 (protest of agency evaluation was sustained where the record reflects that the agency failed to consider one of the evaluation factors established by the terms of the solicitation). 

Unsupported Evaluation and Selection Decision 

DRS ICAS, LLC, B-401852.4; B-401852.5, Sept. 8, 2010, 2010 CPD ¶ 261 (protest challenging evaluation of protester’s technical proposal was sustained where the agency assessed numerous weaknesses not reasonably supported by the record. For example, certain agency concerns first raised in a hearing on this protest were not reflected in the contemporaneous record, and had not been previously raised in the agency’s earlier responses to the protest; since these additional concerns were first raised in the heat of the adversarial process–and were inconsistent with the underlying record–they were given little weight).

Effective SBA Small Business Size Protest Lawyers

If you are subject to a small business size protest or want to file a small business size protest, there is a completely different bid protest process. The attorneys at Watson & Associates frequently represent and defend government contractors in this unique area of procurement law.  See our size and affiliation FAQs.

 Size Appeal Determinations 

A contracting can file a protest before or after an award. However, he or she files a size protest before bidding has started or notify the offerors of the selection of the apparent successful offer, the size protest may dismissed as premature. After bidding has opened a size protest must be filed within 5 days. Our size protest lawyers will handle this aspect of your case while you continue to oversee your daily operations.

Small Business Size Protest Process

The bid protest process is a little different for small business size determinations. The area office makes initial size determinations within very tight time constraints (usually within 10 days of receiving a protest). Area office determinations may be appealed to the Office of Hearings and Appeals at SBA headquarters in Washington, D.C. by any of the interested parties. Contact our government contract lawyers to file or defend an SBA size determination protest. Read a recent Size Determination filed by the attorneys at Watson & Associates, LLC.

Nationwide Assistance to All Contractors

Watson & Associates has developed a reputation as the go-to government contract law firm. This is mostly true due to our ethical goal of minimizing unnecessary costs, our internal practice of honesty, trust and hard work. There is simply no need to retain a government contracts attorney in Washington, DC. In fact, Watson can represent defense contractors in Colorado, Wyoming; Washington State, California, Maryland, New Mexico, Kansas and Nebraska; New York, Los Angeles, San Francisco, Chicago, Illinois, Michigan, Pennsylvania, Virginia, North Carolina, South Carolina, Arkansas, Colorado Springs, Utah, Oklahoma, Ohio, Maine, Florida, Texas, Nevada, Maryland, Louisiana, Las Vegas, Georgia, Hawaii, Alaska, Washington, D.C., Wes, Virginia, Florida, Indiana, Washington State, Mississippi, California, Tennessee, Tampa, Miami, Virgin Islands, Rhode Island, Vermont, Wisconsin, Minnesota, Missouri, Virginia, Delaware, Connecticut, Arizona, New Hampshire, Massachusetts and Montana.

Cities in which we practice bid protest law include Anchorage, AK; Atlanta, GA; Austin, TX; Chicago, IL; Colorado Springs, CO; Dallas, TX; Denver, Colorado; Indianapolis, IN; Las Vegas, NV; Los Angeles, CA; Miami, FL; Philadelphia, PA; San Antonio, TX; San Diego, CA; San Francisco, CA; San Jose, CA; Santa Clara, CA; and Tampa, FL.

Contact us

Contact us  for a free initial consultation. If you are new to government contracting or a seasoned defense contractor, contact Watson & Associates for cost-effective federal procurement lawyers that can produce the same results as larger firms. Call toll free at 1-866-601-5518.