Welcome to the new Fox Rothschild Federal Government Contracts & Procurement Blog. I hope that you will find the Blog to be a helpful resource for practical advice concerning federal (as well as state and local) procurement matters, and a way to keep up with the latest trends and issues in government contracting.
To help kick off the Blog, I’ll be publishing a 10-part series on bid protests at the Government Accountability Office (“GAO”). This weekly series is designed to discuss the basics of disputing government awards of federal contracts. The information covered in this series will be useful to anyone seeking to do business with the government. Whether you were improperly denied a federal contracting opportunity, or were awarded a contract that is now the subject of a dispute, this series will help you understand the complex process of GAO bid protests.
As we cover various topics of interest regarding GAO bid protests, it may be helpful to refer to the rules that govern the process. These rules can be found at 4 C.F.R. Part 21.
Today, we start the series with Part 1: Who May File a GAO Bid Protest?
A GAO protest must be filed by an “interested party.” In legalese, an interested party is an actual or prospective offeror with a direct economic interest in a contract being offered by a federal government agency (such as the U.S. Army Corps of Engineers, the General Services Administration, or the Department of Veterans Affairs – obviously these are just a few examples of many, many federal agencies that can be the subject of a GAO bid protest). In plainer terms, an interested party is a contractor with a recognized stake in the contract being offered by the federal government.
A contractor’s status as an interested party may depend on when a problem arises in the contract award process. If a protest is raised before bid opening, an interested party is simply a contractor that has expressed an interest in competing for the contract. However, after bid opening or the submission of proposals, the contractor must be “next in line” for the award of the contract to be considered an interested party. In other words, you must show that – if your protest is successful – you should be awarded the contract.
Keep in mind, however, that being “next in line” for the award does not necessarily mean that the agency ranked you in second place. For example, even the highest-priced bidder for a contract could be next in line if the protesting bidder shows that all other bidders are ineligible for award. Likewise, if the proper remedy in response to a protest is re-competing the contract, the protester is considered an interested party because it regains the opportunity to compete for the award.
As we’ll discuss later in this series, the timeframes for GAO protests are quite short. So if you are thinking about filing a protest, consider consulting an attorney to evaluate your status as an interested party. That same attorney can also represent you before the GAO when it hears your protest.
Check back in next Tuesday when I publish Part 2 in this series, which discusses the typical parties to a GAO protest. In the meantime, you can always feel free to reach out to me directly if you have questions.