A series of recent bid protest decisions from the Government Accountability Office (GAO) in which the protest was sustained—but in which an intervenor was not involved—serve as a great opportunity to remind federal government contractors of the importance of intervening in bid protests. For the (Top Ten) reasons set forth below, the decision not to intervene in a protest of a procurement on which your company bid or proposed frequently ends up being “penny wise and pound foolish.”
The Top Ten List
- 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 therefore, their interests are broader than, and potentially distinct from, your company’s interests.
- Your company knows its proposal better than anyone. Thus, you are best equipped to rebut challenges to your technical proposal, cost/price proposal and past performance. Similarly, intervenors often times are in the best position to respond to organizational conflict of interest (or “OCI”) allegations.
- Intervening will help your company better protect its confidential and/or proprietary information if it becomes part of the record during the bid protest.
- Likewise, by intervening, your company will be in a better position to protect its business reputation.
- Some government attorneys are overworked and have limited resources. Other government attorneys are “green” when it comes to bid protests because their offices simply do not see very many of them.
- 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 nature and scope of the corrective action.
- An intervenor can make arguments that, for whatever reason, the government does not or cannot make.
- If your company is the incumbent-contractor, then you likely are more knowledgeable than the protester (and possibly the government) about the actual work under protest. Accordingly, you are uniquely qualified to rebut the protester’s factual assertions about the nature and scope of the work at issue.
- In a U.S. Court of Federal Claims bid protest, your company, as an intervenor, will be able to articulate with unique force and specificity 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 (e., confidential, proprietary and source selection sensitive information). However, by intervening, 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).