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BID PROTESTS

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Thousands of bid protests are filed every year, either at the Board of Contract Appeals of the procuring agency, the U.S. Court of Federal Claims or, most frequently, the U.S. Government Accountability Office. Companies who are considering filing a protest should seek legal advice quickly. Bid protests are typically subject to stringent filing deadlines. Missing a deadline could cause a company to lose its legal right to protest. Also,
when a protest is filed at the Government Accountability Office within prescribed deadlines, the protester can stop an award or contract performance, unless a senior agency official overrides the required suspension. This can be an important step for the protester to obtain a meaningful remedy if the protest is successful, or to obtain a settlement satisfactory to the protestor.

Bid protests are commonly used by disappointed bidders to challenge the award of a contract or the terms of procurement solicitation. Some companies believe they should never protest because they will be “black balled” by the agency and will not get any business from the procuring agency in the future if they protest. This belief is mostly untrue. Over a thousand companies file protests every year. Companies that regularly file bid protests include some of the biggest names in government contracting, such as Lockheed Martin, AT&T, EDS and IBM. Adopting a policy of “never protesting” is self-defeating, and may encourage agencies to award a contract to a competitor if the agency believes that your company is unlikely to challenge the result. The reason is simple: Protesters can not only win their cases and recover their protest costs and attorneys fees, but they could win award of the protested contract as well. A settlement wherein the protestor performs a portion of the protested contract is also a possibility.

A company that wins a contract that is subsequently protested by a disappointed offeror may also be permitted to intervene and defend its award, depending on the forum. Any company that is the awardee of a protested contract that is important to its business should seriously consider intervening to assist the agency in defending against the protest.


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