Bid protests are commonly used by disappointed offerors to challenge the award of contracts or the terms of procurement solicitations. Bid protests are filed at the procuring agency, the U.S. Court of Federal Claims (Court of Federal Claims) or, most frequently, the U.S. Government Accountability Office (GAO).
Cohen Mohr has represented companies in all aspects of the bid protest process, and has filed or defended hundreds of cases at the GAO, the Court of Federal Claims, and, prior to revocation of its protest jurisdiction, the General Services Administration Board of Contract Appeals. Here are some representative examples of Cohen Mohr’s bid protest experience:
- Defense of Federal Express’ $6.3 billion U.S. Postal Service contract at the Court of Federal Claims and the Court of Appeals for the Federal Circuit. Emery Worldwide Airlines, Inc. v. United States, 49 Fed.Cl. 211, aff’d, 264 F.3d 1071 (Fed.Cir.2001);
- Defense of Litton’s $138 million contract for the upgrade of Navy CG 47 ships at the GAO. Electronic Design, Inc., B-279662.5, May 25, 1999, 99-1 CPD ¶ 103;
- Overturning the multi-million dollar TC3 contract at the GAO that was awarded to a competitor of Sprint. Sprint subsequently won the contract after agency corrective action. Sprint Communications Company, B-278407, B-278407.2, Feb. 13, 1998, 98-1 CPD ¶ 60;
- Overturning a multi-million dollar services contract awarded by the Army to a competitor of Digicon. The client ultimately won the contract after agency corrective action;
- Forcing a recompete of a maintenance contract awarded by USDA to a competitor of Integration Technologies Group;
- Successfully protesting the awards of multi-year, multi-billion-dollar indefinite-delivery/indefinite-quantity contracts by the Army to competitors of Multimax. Multimax, Inc., et al., B-298249.6, et al., Oct. 24, 2006, 2006 CPD ¶ 165.
Cohen Mohr has extensive experience with all aspects of the bid protest process, from preparing the initial protest to examining witnesses at trials and hearings. Companies who are considering filing a protest should seek legal advice quickly. Bid protests are subject to stringent filing deadlines.
Missing a deadline may cause a company to lose legal rights. Also, when a protest is filed at the Government Accountability Office within certain 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.
Cohen Mohr helps clients distinguish between protests that have a realistic chance of winning and those that are likely to fail. Some companies believe that they should never protest because they will be “blackballed” by the agency and will not get any business from the procuring agency in the future if they protest. In the vast majority of cases, this belief is untrue. The examples that we’ve listed show that protesters can not only win cases, but win the contract as well. Over a thousand companies file protests every year. Bid protesters have included some of the biggest names in government contracting, such as Lockheed Martin, AT&T and IBM.
A company that wins a contract that is subsequently protested by a disappointed offeror is permitted to intervene and defend its award at the GAO. Similar intervention rights typically apply at the Court of Federal Claims. Intervention is almost always advisable if the protested contract is important to your company. Some companies decide not to intervene because they believe that a protest will likely be unsuccessful. However, agencies can and do lose protests in a significant number of instances.
Any company that is the awardee of a protested contract that is important to its business will want to seriously consider intervening to assist the agency in defending against the protest.
- ESCgov, Inc., B-407107.2, Oct. 9, 2012
- East West, Inc. v. United States, No. 11-455C (Fed. Cl. Sep. 27, 2012)
- NCS Technologies, Inc., B-406306.3, Sept. 17, 2012, 2012 CPD ¶ 259
- Deloitte Consulting, LLP, B-407107, Aug. 17, 2012
- Distributed Solutions, Inc. v. United States, — Fed. Cl. —, No. 12-274 C (Aug. 10, 2012)
- VA’s Evaluation Methodology Strayed From Solicitation’s Requirements, GAO Rules
- Big Bid Protest Win at the COFC
- Carp Successfully Defends Another GAO Bid Protest
- GAO Protest Victory for Carp
- Carp Successfully Defends GAO Protest