Government Contracts: Bid Protests
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UPDATED: Mar 18, 2021
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A bid protest may be filed by an “interested party” if it is believed that an award or proposed award of a government contract was not completed in accordance with the law. There are a number of requirements when contracting with either the federal or state government that have been passed in an effort to protect public funds and public interest. Parties who believe those requirements are not fulfilled can file a bid protest with the U.S. Government Accountability office or with the relevant state or local department.
Filing a Bid Protest
Bid protests for federal government contacts are regulated under 4 C.F.R. § 21.0(a). Under these requirements, only interested parties- appropriate government officials or other providers who participated in the bid- may file a bid protest. Eligible government officials, for example, may participate as protestors when the bidding was conducted under the Office of Management and Budget Circular section A-76.
All protests must be filed either prior to the time the proposals are received (if the protest is about the terms of the solicitation) or must be filed within 10 calendar days of the protestor knowing of the problem. Such time limits are rigidly enforced and protests may not be filed outside of the required time frames. If the 10-day time limit expires on a weekend or federal holiday, the protest must be filed on the next business day.
When a protest is filed, those who were awarded the contract may participate in the protest, but are not required to do so. When they chose to do so, they are considered “intervenors.”
The Protest Process
Some bid protests are dismissed after filing for procedural reasons, such as lack of standing to file or the expiration of the time limits. When a bid protest is permitted to go forward, the agency that awarded the protested contract will provide a summary of their response to the arguments raised in the protest. Protestors must respond to this summarized report no more than 10 days after receiving it in order to continue with the protest. Additional filings and information may be requested and a hearing may be held.
Some bid protests will also settle without a hearing or official review if the agency awarding the protested contract takes corrective action. This may include re-evaluating the received proposals, awarding the contract to a different provider, or amending a request for bid, among other things. If the awarding agency resolves the issue being protested voluntary, the GAO will dismiss the pending proposal if it believes the problem has been corrected.
The GAO addresses only protests for federal government projects. States may have a similar procedure in place to allow for protests when a state/local government contract is awarded that violates requirements or when an improper bidding process is used.
If you are involved in a bid protest or if you wish to file such a protest, it is important to consult with an attorney. The laws regulating government contracts are complex and protest time limits and requirements strictly enforced, so it is very important to have legal representation to have the best chance of success.