As we noted recently, the number of bid protest filings peaks in October as a result of increased government spending at the end of the government's fiscal year, which ends September 30. Thus, our previous article provided a fiscal year-end refresher for government contractors on the process for intervening in bid protests at both the Government Accountability Office and the U.S. Court of Federal Claims. This follow-up article provides 10 reasons why government contractors should consider intervening in bid protests.
10 Reasons Why
- The contracting agency's interests may not be the same as your company's interests, and your company is in the best position to protect and advocate for its own interests. In fact, contracting agencies owe an equal duty to all offerors, and thus their interests are broader than, and potentially distinct from, your company's interests.
- Some government attorneys have limited resources or are overworked. Other government attorneys are "green" when it comes to bid protests because their offices simply do not see very many of them.
- Intervening will help your company better protect its confidential and/or proprietary information if it becomes part of the record during the bid protest.
- Similarly, by intervening, your company will be in a better position to protect its business reputation.
- Your company knows its proposal better than anyone. As such, your company is best equipped to rebut challenges to your technical proposal, cost/price proposal and past performance. Likewise, intervenors often are in the best position to respond to allegations regarding key personnel and organizational conflict of interest (OCI) matters.
- An intervenor can make arguments that, for whatever reason, the government fails to address.
- If your company is the incumbent-contractor, then you may be more knowledgeable than the protester (and possibly the government) about the actual work under protest. As such, incumbent contractors may be uniquely able to rebut the protester's assertions about the scope and nature of the work at issue.
- In a U.S. Court of Federal Claims bid protest, your company, as an intervenor, will be able to more persuasively and specifically articulate the harms that it will suffer if a temporary restraining order or an injunction is issued in connection with the protested contract.
- Most bid protests are covered by a protective order that prohibits the attorneys from disclosing protected information (i.e., confidential, proprietary and source selection sensitive information). By intervening, however, your company will have the ability to be better informed about the course of the protest and the status of the procurement (subject, of course, to the terms of any protective order that is issued in the protest).
- If the contracting agency decides to take corrective action in response to the protest, an intervenor will be in a much better position than a non-intervenor in terms of being able to influence the scope and nature of the corrective action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.