GAO Bid Protest Lawyers & Attorneys | Theodore Watson & Associates

Bid Protest Attorneys Aggressively Protecting Your Rights

(866.601.5518)

The bid protest attorneys at Watson & Associates, LLC represent large defense contractors and small businesses across the United States with protest advice, consulting, and ultimately filing protests to either GAO, the agency or to the SBA. Our vast expertise as former contracting executives, and skill in procurement law, puts us in a unique position to analyze both the government’s mindset and bid protest law. We offer free initial consultations and flat rate options.

Federal contractors must know when, and when not to, file a protest. Before you file a protest, you should have a sound basis for filing. In other words, knowing such important things as GAO jurisdiction or having a sound evidentiary basis to show that the agency did not follow the criteria as set forth in the solicitation could dramatically strengthen your position. Having a GAO bid protest attorney to help you evaluate your situation can be worth its weight in gold. If you are going to file a protest, have your homework done.

Summary of our bid protest services. When you utilize our services we will assist in the following areas:

· Protest to GAO

· Agency protests

· GSA bid protests

· Pre-filing case analysis

· Size protest to the SBA

· Restrictive Solicitations

· Solicitation & RFP Analysis for award criteria

· SBA 8a termination appeals

· Government contract consultation

· Contract termination & Appeals

Our government contracting and bid protest services reach businesses in various industries. Watson has gained a reputation for being a small firm that provides the same level of expertise as larger firms. We represent and consult with contractors in the following industries:

· Aircraft & Aerospace

· Medical

· Freight and Moving

· IT and Equipment

· Landscaping & Construction

· Transportation & Airlines

· Manufacturers

· Service Industries

Our scope of work extends to acting as outside counsel for special federal procurement projects, contract compliance, contract management consulting and litigation such as bid protests.

Watson has successfully counseled contractors in protest prevention and has successfully handled bid disputes with agencies. Successful bid protest representation is knowing when to advise you not to file a protest. Our candid and honest approach in bid protest practice creates trust and credibility. Watson has handled situations where the agency failed to follow its own criteria and the source selection documentation was substandard. The agency agreed to resolve the issue in an amicable fashion. Our client got a result that was not just less costly but favorable. Our attorneys also represented clients in SBA size protests alleging affiliation. In other cases, our lawyers found the SBA incorrect in its analysis of early graduation or termination from its 8a Program.

Understanding the complex situations that give rise to filing a protest is essential to legal our legal representation. Contractors spend thousands of dollars and much more in building relationships and bidding on government solicitations only to find themselves dissatisfied with the agency’s award. Within the bidding and source selection phases many things can go wrong. Sometimes the agencies enter inappropriate discussions, fail to give meaningful discussions.

These are specific and complex situations requiring skilled bid protest attorneys to handle. Common reasons such as size standard (NAICS) challenges can change the forum and requirements for filing your protest). For example, some contractors may file a protest because they believe the agency’s source selection decision does not make sense. You will more than certainly lose your protest simply because the standard is what makes sense to the agency and not what would the general public do in a similar situation.

Before filing a protest you must always know if you can even file one. You have to be an “interested party” to file a protest. This means that you should be an actual bidder or offeror whose direct economic interest would be affected the award of, or by the failure to award, a contract. There is simply no requirement for you to be the “next in line” to have a right to file a bid protest.

Valid reasons for filing a protest may include:

· Solicitation or award decision violates an applicable statute or regulation

· The agency improperly excluded the protestor from the competitive range

· Size standard violations (size protest) or undue reliance

· The contracting agency engaged in improper discussions with other offerors or failed to conduct meaningful discussions

· The source selection evaluation was irrational, arbitrary , or not conducted in accordance with the solicitation

· The awardee was not responsible or qualified to perform the work OR

· Awardee was not responsive to the solicitation

· If the agency did not follow the criteria as set for in the solicitation

· If you bid proposal was rejected

· Information before award that a project is going to be awarded to another contractor

· The government’s solicitation is defective

· When the bid contains restrictive specifications or omission of a required provision

· The bid contains ambiguous or indefinite evaluation factors

· If your contract was terminated and improprieties in the award of the contract

GAO cannot substitute the agency’s decision. As bid protest lawyers, we generally ensure that you don’t make this mistake. The key to our success is to just win bid protest decisions but also to wisely prevent you from filing especially when you have a weak case. Our law firm adopts a candid approach in our legal relationships and we make no exceptions here.

If you fail to meet the bid protest deadlines, you will lose your rights. Generally, a bid protest shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. Other limitations apply to SBA 8a terminations, size protests or appeal to OHA.

In such cases, with respect to any protest basis which is known or should have been known either before or as a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.

Know where to file your protest. The last thing that you or your lawyer would want to do is to file your protest in the wrong forum. As mentioned earlier, a bid protest can be filed with the agency itself or you can file it with the GAO or SBA depending upon the reason for the protest. Lastly, you can file a case before the U.S. Court of Federal Claims. The agency protest takes a shorter time to resolve. However, the reality is that agencies very seldom reverse their own actions. Watson can file your protest in virtually any forum.

When Does GAO Make a Decision? The GAO bid protest rules state that:

(a) GAO shall issue a decision on a protest within 100 days after it is filed.

(b) In protests where GAO uses the express option procedures in § 21.10, GAO shall issue a decision on a protest within 65 days after it is filed.

(c) GAO, to the maximum extent practicable, shall resolve a timely supplemental protest adding one or more new grounds to an existing protest, or a timely amended protest, within the time limit established in paragraph (a) of this section for decision on the initial protest. If a supplemental or an amended protest cannot be resolved within that time limit, GAO may resolve the supplemental or amended protest using the express option procedures in § 21.10.

Never miss the leverage of getting a debriefing. When you receive notice that you are not the successful bidder, you should immediately request a debriefing from the agency. Not only does this put the agency on notice but it also allows it to formerly provide some sort of reasoning for its decision.

Tip. Do not send letters asking for explanations or letters with vague information. Be very specific and with a request for debriefing. Request it within 3 days. If done correctly, the 10 day filing requirement is usually tolled (suspended) until you receive the debriefing.

Tip. The agency does not have to give you a written debriefing – it can be oral.

As soon as you know about the award, the clock starts to tick. Don’t simply think that whenever you ask for a debriefing that you are automatically saved from the 10 day requirement. For example, see In the Matter of: RTI Technologies, LLC, B-401075, the Protest was untimely under GAO’s Bid Protest Regulations, where a protest on the same grounds was initially filed at the agency and denied, and filed with GAO more than 10 days after receipt of the denial.

GAO will not take certain bid protest cases. Your protest lawyer should advice you that you cannot file a GAO protest for the following reasons:

· Contract administration. The administration of an existing contract is within the discretion of the contracting agency. Disputes between a contractor and the agency are resolved pursuant to the disputes clause of the contract and the Contract Disputes Act of 1978. 41 U.S.C. 601-613

· Small Business Administration issues. If you are protesting a firm’s size standard, this form of protest should be filed with the SBA and not GAO.

· Small business size standards and standard industrial classification. Challenges of established size standards or the size status of particular firms, and challenges of the selected standard industrial classification may be reviewed solely by the Small Business Administration. 15 U.S.C. 637(b) (6).

· Small Business Certificate of Competency Program.

· Procurements under sec. 8(a) of the Small Business Act. As bid protest lawyers, we are frequently approached for 8(a) awards and bid protests. The general rule is that GAO will not review this form of bid appeal unless there is a showing of bad faith by the government or that regulations have been violated. 15 U.S.C. 637(a).

· Affirmative determination of responsibility by the contracting officer. Filing a protest to challenge the contracting officer’s determination is a high hurdle to cross. The exceptions are protests that allege that definitive responsibility criteria in the solicitation were not met and those that identify evidence raising serious concerns that, in reaching a particular responsibility determination, the contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or regulation. Our bid protest attorneys can further explain this matter.

· Protests which lack a detailed statement of the legal and factual grounds of protest or which fail to clearly state legally sufficient grounds of protest. This is where you can benefit firm having a bid protest attorney on board your team.

· Procurements by agencies other than Federal agencies as defined by sec. 3 of the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 472.Protests of procurements or proposed procurements by agencies such as the U.S. Postal Service, the Federal Deposit Insurance Corporation, and non appropriated fund activities are beyond GAO’s bid protest jurisdiction as established in 31 U.S.C. 3551-3556

· Suspensions and debarments

· Competitive range. GAO will not consider protests asserting that the protester’s proposal should not have been included or kept in the competitive range

Nationwide Service – No Washington, DC Bid Protest Attorney Needed. Contractors incorrectly believe that they must hire a Washington, DC protest attorney to represent them. Watson & Associates can represent you in a federal case regardless of your state. We are prepared to advance bid protest cases or 8a terminations from contractors in Colorado, Wyoming, New Mexico, Kansas, Nebraska, New York, Los Angeles, San Francisco, Chicago, Illinois, Michigan, Pennsylvania, Virginia, North Carolina, South Carolina, Arkansas, Denver, Colorado Springs, Utah, California, Oklahoma, Ohio, Alabama, Maine, Florida, Texas, Nevada, Las Vegas, Georgia, Hawaii, Alaska, Washington, D.C., West Virginia, Florida, Indiana, Washington State, Mississippi, Tennessee, Tampa, Miami, Virgin Islands, Rhode Island, Vermont, Wisconsin, Minnesota, Missouri, Virginia, Delaware, Connecticut, Arizona, New Hampshire, Massachusetts, and Montana. Call us at 720.941.7200 or Toll Free 866.601.5518.

What Remedies Can GAO Give You? When GAO determines that a solicitation, cancellation of a solicitation, termination of a contract, proposed award, or award does not comply with statute or regulation, it shall recommend that the contracting agency implements any combination of the following remedies:

· Refrain from exercising options under the contract;

· Terminate the contract;

· Recomplete the contract;

· Issue a new solicitation;

· Award a contract consistent with statute and regulation; or

· Such other recommendation(s) as GAO determines necessary to promote compliance.

Tip: GAO does not have the authority to tell the agency to award the contract to you. GAO usually only makes recommendations to the agency.

Tip & Caution: Although you have the right to file a bid protest, bid protest lawyers should advise you that there is the brutal disappointment of “suspensions” or “overrides”. IF the agency finds an urgent and compelling reason, or in the interest of the government, the agency may continue with the award, despite the “automatic stay” provisions.

SBA Size Protests can substantially harm future relationships with the government. As compared to a GAO bid protest, a size protest occurs when a dissatisfied bidder has reason to believe that the awardee unduly relied on another contractor (usually a large business) for award of the bid- in other words, the successful bidder could not perform the contract. The law suggests that the prime awardee (the small business) must be responsible for contract performance. If the SBA decides that the small business does not handle the critical parts of the contract, then the annual revenues for each company are then merged. This breaks the size (NAICS) standard rule and the contract is lost.

Our bid protest law firm has successfully litigated NAICs size protest to the SBA and appeal SBA decisions.

Appealing size protests can be challenging. The regional SBA office will render the final decision. If you receive an unfavorable decision, you can appeal the decision. However, when you appeal a size protest, it is not an opportunity to reargue your case. The standard for appeal is a lot higher. For, example, you size appeal lawyer would have to show that the SBA’s decision has no basis in law or fact, abuse of discretion, or simply challenge the evidence of the record as not supporting the final decision.

SBA size protest and the Ostensible Contractor Rule. The ostensible contractor rule is typically the analysis for which the SBA makes a size determination after a size protest is filed. After looking at whether the small business has unduly relied on another contractor (commonly referred to as affiliation), a totality of the circumstance test will produce the end result. Theodore Watson & Associates protest lawyers can provide immediate help on this topic.

SBA 8a terminations and appeals. Another problem that arises is SBA 8a program termination. Watson & Associates, LLC also represents small businesses that were notified of an early graduation from the 8a program or intent to terminate. We offer:

· Case analysis and review

· Response to the Initial Recommendation to Terminate

· Appeal to OHA

Our attorneys keep up to date with recent GAO bid protest decisions. The following are recent GAO bid protest decisions from protestors across the country.

B-400870.3 July 15, 2009:University of Massachusetts Donahue Institute (UMDI), of Hadley, Massachusetts, protests the actions of the U.S. Department of the Interior, National Business Center Acquisition Services Directorate (AQD), in connection with four contracts awarded to Education Development Center, Inc. (EDC), of Newton, Massachusetts, on behalf of the U.S. Department of Health and Human Services (HHS), to provide training and technical assistance services for HHS grantees in the states of Massachusetts, Connecticut, Rhode Island and Maine pursuant to request for proposals (RFP) No. 1406-04-08-RP-20771. UMDI asserts that the agency improperly rejected one of UMDI’s proposals and otherwise failed to properly apply the provisions of the solicitation.

B-400134.11,B-400134.12September 3, 2009: L-3 Services, Inc., Enterprise IT Solutions (L-3), of Reston, Virginia, protests the award of a contract to General Dynamics Information Technology, Inc. (GDIT), of Fairfax, Virginia, by the Department of the Air Force, Air Force Space Command (AFSPC), under request for proposals (RFP) No. FA2550-06-R-8000, to provide enterprise operations, maintenance, and management of data, voice, land mobile radio, and video conferencing facilities. L-3 argues that the agency unreasonably concluded that GDIT either did not have or properly mitigated organizational conflicts of interest, and that the agency improperly evaluated L-3’s proposal under the Mission Capability/Proposed Enterprise End State (PEES) sub factor and the Past Performance factor.

B-400134.10 August 18, 2009: Northrop Grumman Information Technology, Inc. (NGIT), of McLean, Virginia, protests the award of a contract to General Dynamics Information Technology, Inc. (GDIT), of Fairfax, Virginia, by the Department of the Air Force (AF), Air Force Space Command (AFSPC or Command) under request for proposals (RFP No. FA2550-06-R-8000, to provide enterprise operations, maintenance, and management of data, voice, land mobile radio, and video conferencing facilities. The protester argues that the agency failed to properly evaluate GDIT’s proposal and assess its proposal risk, improperly evaluated all proposals under the Mission Capability/Small Business Subcontracting sub factor, and improperly assessed NGIT’s proposal risk under the Mission Capability/Core Communications and Information Technology (IT) Services Management sub factor.

See other GAO bid protest decisions

Contact us to file your protest: If you believe that your bid rights are at risk, contact us online immediately, or call a GAO bid protest attorney at 720.941.7200 or Toll Free 866.601.5518

Attorneys: Peter Ford Theodore Watson Lorraine Stark

Government Contract News

Additional online resources:

Our new Government Contracts website Federal Acquisition Regulation Central Contractor Registration Federal Contract Opportunities Office of Federal Procurement Policy Office of Federal Contract Compliance Programs Our government contract consulting services Department of Agriculture U.S. Supreme Court Other Bid Protest Website

We are prepared to advance bid protest cases from contractors in Colorado, Wyoming, New Mexico, Kansas, Nebraska, New York, Los Angeles, San Francisco, Chicago, Illinois, Michigan, Pennsylvania, Virginia, North Carolina, South Carolina, Arkansas, Denver, Colorado Springs, Utah, California, Oklahoma, Ohio, Alabama, Maine, Florida, Texas, Nevada, Las Vegas, Georgia, Hawaii, Alaska, Washington, D.C., West Virginia, Florida, Indiana, Washington State, Mississippi, Tennessee, Tampa, Miami, Virgin Islands, Rhode Island, Vermont, Wisconsin, Minnesota, Missouri, Virginia, Delaware, Connecticut, Arizona, New Hampshire, Massachusetts, and Montana Bid protest lawyers.