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What is a Protest of a Government Contract?

by Max Franks - May 23, 2018

A competitor wins a contract that you feel you should have won based on price. What can a small business do that has submitted a bid on that opportunity? The Federal Acquisition Regulations or FAR defines a “protest” as a written objection by an interested party. This clause allows companies who have good reason to object to the awarding of a contract to protest if they are an interested party.

An “interested party” is an actual or prospective offeror whose direct economic interest would be affected by the award of a contract, failure to award a contract, or some other contract action. An interested party must have submitted a bid on the opportunity with the contracting officer.

A protest may be filed in response to one of the following:

  1. Solicitation
  2. Cancellation of a solicitation
  3. Award or proposed award of the contract 
  4. Termination or cancellation of an award

The regulations allow protest to be sent to one of three different groups:

  1. With the Contracting Officer assigned to the bid
  2. With the Government Accountability Office or GAO
  3. Court of Federal Claims

All protests must be based on issues that are mentioned in the contract bid opportunity, and you must show how the business that was awarded the contract did not meet that requirement.

About 43% of all protests rule in favor of the business. So before you protest, make sure you have your facts together. Just being a sore loser is not a reason to protest; you must use the bid opportunity language for any issue you which to protest.

Some reasons to protest are:

  • Improper technical or price evaluation
  • Relaxation of the RFP/RFQ requirements
  • Failure to follow the stated evaluation grounds
  • Addition of an undisclosed evaluation ground
  • Improper cost-technical trade-off decision (the additional technical advantage of the awardee does not justify the high price premium paid
  • Improper or incomplete discussions
  • Organizational or personal conflict of interest

The General Accountability Office now allows online protest at www.gao.gov/legal/bid-protests/file-a-bid-protest for new bid protests filed on or after May 1, 2018.

The agency has established a secure and easy-to-use web-based electronic bid protest filing and dissemination system (EPDS) that is mandatory for all new protests (excluding those that include classified material). Protesters are required to use the system to file new protests, and there is a $350 filing fee. Funds from the filing fee will be used to pay for the operation and maintenance of the system.

While your local Procurement Technical Assistance Center or PTAC can explain the process, they are restricted from assisting with the protest, as they are a government sponsored small business assistance program. 

Let APAC discuss with you any issues you have on contracting and bidding. Call us in Little Rock at 501-671-2390 or in Bentonville at 501-650-6180 so we may assist you with this important part of federal contracting.

Max Franks