Protecting Your Award By Intervening
Protests are a legal mechanism by which an interested party can challenge the outcome of a procurement. When an unsuccessful offeror chooses to protest an award, absent certain circumstances performance of the contract either may not begin or if it has begun must cease until the outcome of the protest. Faced with the uncertainty of keeping the contract it was just awarded, contractors should consider intervening in any such protest.
What Is Intervening?
Simply put, this procedure allows the awardee to be a party to the protest. Both the Government Accountability Office (GAO) and the Court of Federal Claims (COFC) allow intervention. If the forum is the GAO, the awardee will be notified of the protest by the procuring agency. In order to intervene, the contractor files a letter with the GAO (copying the agency, the protestor, and any other participants) indicating why it is an interested party and requesting to intervene. If granted, the awardee may participate fully in the protest. If the litigation is at the COFC, the protestor must give the awardee 24 hours-notice prior to filing the protest. Upon initiation of the protest, the contractor may then file a motion to intervene, which if granted will allow it to be a party to the ensuing action.
Contractors spend significant resources seeking and securing government business opportunities, many of which are quite lucrative. Given the current climate, a protest is likely to filed by an unhappy bidder. Instead of sitting on the sidelines hoping the agency is going to defend the award, the contractor should seriously consider intervening in order to protect its award. The contractor cannot be certain that the agency will vigorously defend the award or more likely that it will not take corrective action. Corrective action allows the government to re-do all or part of the procurement, including the award. If the contractor intervenes, it can advocate for its own interests in the protest, including arguing against corrective action, and can assist the agency in defending the award.
Securing counsel to intervene in a protest certainly adds more costs to a contract than have already been incurred in business development and proposal preparation. However, as indicated above, doing so ensures the incumbent contractor has some influence over retaining its award. Having its own voice in the protest is the only assurance an awardee has that its interests are truly represented and considered.
Kristi Morgan Aronica, Attorney