Welcome back to the Fox Rothschild Federal Government Contracts & Procurement Blog and my weekly series on Government Accountability Office (“GAO”) bid protests. Last week, we looked at what it means to be an “interested party” disputing the government’s award of a federal contract. This week, we will continue the series with Part 2: Protest Parties.
As we discussed last week, the key player in a GAO bid protest is the “protester.” Most commonly, the protester is a contractor that is challenging an error or mistake by the government in connection with the award of a contract. However, several other players may impact the ultimate outcome of a bid protest.
First, GAO protests are always assigned to a GAO attorney. This attorney acts in the role of the judge in a traditional courtroom setting. It will ultimately be the GAO attorney that reads your protest and makes the decision to sustain, dismiss, or deny it (more on this later in the series). The GAO attorney will also play an important role in the day-to-day administration of the protest, including facilitating communications, maintaining the protest schedule, and resolving any issues that arise along the way.
The protest will also involve legal counsel from the government agency that is procuring the contract at issue. Agency counsel may or may not already be familiar with the protested contract. It is the role of agency counsel to act as your adversary during the protest. Most importantly, agency counsel will prepare the “Agency Report” – a document outlining the agency’s position that it did not make an error (and that your protest should therefore be dismissed or denied).
Finally, the protest may include parties known as “intervenors.” An intervenor is an interested party that has a stake in the outcome of the protest and wants to protect its own interests. Bid protest intervenors can include the awardee (for a post-award protest) or all offerors with a reasonable prospect of receiving the award if the protest is denied (for a pre-award protest). After a protest is filed, the GAO’s rules require that the agency give all such parties a chance to intervene in the proceedings.
An intervenor can have a huge impact on the success of a GAO bid protest. This is particularly true in a post-award protest, where the intervenor is the awardee of the contract now being protested. The actions taken by the intervenor can be key to retaining the award of the contract – or losing it. Because the awardee has a lot at stake, the GAO rules allow the awardee to be proactive in the face of a bid protest as an intervenor. Thus, intervenors may be represented by counsel and can fully participate in the protest – including filing motions and responding to the facts and law included in the Agency Report.
Tune back in next week for Part 3 of the series, where I’ll be discussing what can (and can’t) be protested before the GAO. As always, feel free to reach out to me directly with any questions.