7 Reasons Why Awardees Should Intervene in Bid Protests
It's the final month of FY23 and federal agencies are rushing to spend those "use it or lose it" contracting dollars. If you are awarded a contract and an unsuccessful offeror challenges the award, should you intervene in the bid protest?
Every federal contractor knows how difficult it is to win a government contract. Indeed, many contractors often start pursuing larger contracts or vehicles well over a year before the solicitation is even published. And, while each contractor’s business development and capture strategies vary, they typically share two characteristics: copious amounts of time and money. Given the financial burden and significant hurdles between contractors and a federal contract award, it is often quite exhilarating to receive a notice of award.
That sense of accomplishment, however, can be fleeting, particularly where a competitor challenges the agency's award decision. Given the stiff competition in the industry, coupled with the complex technical and procedural issues inherent in the bid protest process, protesters will often hire adept outside counsel to litigate their bid protests. In that situation, awardees will often ponder their options, including whether they should intervene to protect their investments. While there are numerous reasons for intervening, this article addresses the seven top reasons to consider in guiding your “go/no-go” intervention decision.
1. Agencies Often Anticipate Intervenors
Federal contracting is a complex and competitive landscape. In many cases, contracting officials understand that there is a correlation between the award value and the likelihood of protest. After all, bid protests are an inherent part of the procurement process and the larger and more complex the procurement, the more time and money contractors often will have spent to position themselves for award. Agencies understand this reality and often anticipate that, when bid protests are inevitably filed, awardees will likely intervene to defend their awards. As such, because interventions are expected, agencies typically do not discourage such actions or view them in a negative light. Therefore, optical or political considerations generally are neither impediments nor factors in intervention decisions.
2. Defend the Award
Just because the agency awarded a contract does not mean that it will defend a bid protest or make all the arguments that the awardee would like the agency to make. After all, the agency’s interests may be broader than an awardee’s. Intervening provides awardees with an opportunity to make their case (e.g., request dismissal in full or in part, articulate the strengths of their technical approach or price advantage, and provide additional legal and factual bases in support of the agency’s decision). Indeed, many procuring agencies welcome interventions because awardees can bolster the agency’s defense by making different (or perhaps more nuanced) arguments or by making more resources available to the agency’s defense of the procurement.
3. Limit the Agency Report
While protests at the U.S. Court of Federal Claims (“COFC”) are subject to broader discovery, the Government Accountability Office’s (“GAO”) regulations on the subject are more restrictive because they require agencies to produce only “relevant documents” in response to a bid protest. Intervening provides awardees with an opportunity to request dismissal of protest grounds and to advocate for a more limited record that what the protester requested, thereby narrowing or altogether precluding the bases for potential supplemental protest arguments that the protester may unearth during its review of the agency report. Needless to say, the fewer the arguments that are available to a protester, the greater the likelihood the agency will successfully defend their award decision, since the majority of bid protests are won not by their initial protest grounds but by supplemental protest grounds gleaned through discovery.
4. Protective Order
After a bid protest is filed, GAO and the COFC will typically issue a protective order, which prohibits the disclosure of confidential, proprietary, or source-selection sensitive information to individuals that are not admitted to the protective order. Intervening allows the awardee’s outside counsel to “get under the hood” and see what is transpiring during the course of the protest, as those admitted to the protective order will be able to view unreacted documents that are filed in connection with the protest. Further, such access to the record will allow counsel, in working with agency counsel, to augment the agency’s existing arguments or submit additional arguments in defense of the protest. These efforts may make the difference between the agency taking early corrective action, which does not benefit the intervenor, or defending the protest on the merits, which typically does.
5. Protect Confidential Information
In defending the protest, the agency may not closely scrutinize documents and filings with an eye toward protecting the awardee’s confidential or proprietary information. Intervening provides awardees with an opportunity to have their outside counsel, that are admitted to the protective order, ensure that the awardee’s confidential or proprietary information is protected from becoming part of the record. Needless to say, the release of confidential or proprietary information can competitively harm the awardee on future opportunities and undo years of time and capital-intensive business capture and business development efforts.
6. Shape Corrective Action
It is inevitable that agencies, in some cases, will decide to take voluntary corrective action in response to a bid protest. GAO’s annual bid protest report indicates that corrective action happens in many protests. Corrective action comes in different forms, ranging from reevaluations of proposals (in part or in whole) to reopening the procurement and permitting offerors to submit revised proposals. As the latter result generally disadvantages the awardee based on information that may have been made available during the protest process to the protester but not the awardee, the importance of the form of corrective action should not be overlooked. To that end, intervening provides the awardee with an opportunity to advocate for (and shape) a particular course of corrective action such as reevaluating only a specific issue as opposed to a full reevaluation and abstain from reopening the procurement. Again, the narrower the remedy afforded a protester, the better the chance an awardee will ultimately retain its award.
7. Right to Intervene
GAO's and COFC’s bid protest rules allow awardees to intervene in bid protests. Therefore, for the foregoing reasons, awardees should seize and maximize the opportunity and intervene to protect their hard-earned wins.
With stiff competition for federal contracts, government contractors often utilize post-award bid protests to challenge agency evaluations and award decisions. This is particularly true where a procurement is strategically significant or where the dollar amount is relatively high. When facing a bid protest, awardees should intervene to defend their awards (or, at minimum, to keep an eye on the process) and protect their many other interests during the bid protest process. After all, it’s your award the protester wants to strip away, and you should take advantage of all the tools you have to prevent that from happening.
. . .