Business and Legal Insights

Most of the posts we write on bid protests are written from the protester’s point of view. Recently, however, we were asked by a contract awardee whether he should intervene in a protest challenging his award. The short answer to awardees in that situation is “Yes, if keeping the contract is important to you.”

When your award is being challenged, you basically have three options: (1) do nothing and hope for the best; (2) intervene in the protest and represent yourself; or (3) intervene in the protest and hire bid protest counsel to represent you.

When deciding which of these three options to pick it is important to realize a few things. First, at this point the contract is yours to lose. Second, protesters who actually win usually get decisions in their favor shortly after filing their protest – often within a month. Third, the protest process is happening to you, no matter how unfair you think this may be. Fourth, the protest process can be intricate and time-consuming.

Once an awardee accepts this reality, he has to decide, based on the value of the contract, just how much he’s willing to fight to keep it.  If the contract is valuable, then, usually, the most effective course of action is to engage protest counsel as early as possible to actively defend the award.

As noted above, if a protester is going to win (and thereby take away your contract), it will usually be because something he said in his protest seems to be clearly correct. So it’s usually a good idea to file a coherent, effective response to a protest that explains why it is incorrect as quickly as possible.  Protest counsel may also be able to find grounds to move to dismiss the protest, such as timeliness grounds.  Similarly, protest counsel may be able to more effectively conduct an independent factual investigation that shows the protester’s claims are without merit.

Finally, while it would be nice to think agency counsel will always provide an effective defense against non-meritorious protests, an awardee who chooses to do nothing accepts the risk that this may not be the case when it comes to his contract.  The agency may often have different goals and motivations, and remember, agency counsel represents the agency, not you.  Finally, failure to timely intervene could cause you to lack standing to challenge the agency’s resolution of the bid protest.