Get your attorney up to speed. Unless you brought in counsel earlier in the process you will first need to immediately schedule a meeting or teleconference to have the proposal team get your attorney up to speed. If the team becomes aware of any possible basis for protesting at the debriefing, that needs to be communicated to the attorney. Authorize your attorney to begin preparing the protest right away and make sure the proposal team reviews and comments on the draft since they are most familiar with the proposals and technical issues.
Protective order. In order to obtain access to the competitor’s proposal and the evaluation record – essential elements to prove your case – your attorney needs to sign a “protective order” that, in order to prevent you obtaining an unfair competitive advantage in the future, precludes him/her from sharing the information with you. Since you cannot review the evaluation record or the agency and your attorney’s responses you will need to rely on your attorney’s judgment regarding your chances of success. The protective order both prevents your access to sensitive information but also prevents the awardee from having access to your information should it intervene in a protest to protect its interests.
The protest process. If the agency does not take corrective action to fix the errors raised in the protest the CO has 30 days to provide your attorney an agency report which consists of the CO’s statements of facts, a legal memo and the evaluation record. Your attorney then has 10 days to review the agency report, respond to it and file a supplemental protest based on any new information gleamed from the evaluation record. This process and beyond is where the legal fees start to pile up so it is best to schedule a meeting with the attorney after reviewing the evaluation record but before preparing any responses. Since protests are largely won or lost based on the evaluation record you should discuss your chances of success right after the attorney reviews the record. If it is low, you will either want to withdraw the protest to cut your losses or if the stakes are high, you may want to continue even if the chances are low as long as your grounds for protest are sufficiently strong as not to ruin your credibility with your customer. If you continue the attorney will draft responses and supplemental protests after which each side often responds to each other and sometimes provides additional briefings. You should maintain continuous communications during this to make sure you are spending your money wisely.
The hearing. Most protests (90%) are resolved by the GAO based on the evaluation record. If there are disputed facts or the procurement is large and complex the GAO may hold an evidentiary hearing. At that hearing the agency’s witnesses will explain the agency’s evaluation and award decision and your attorney will have the opportunity to cross examine them. If you have technical or cost experts they will testify then. Because of the protective order, you will not be able to attend the hearing. Shortly after the hearing the GAO will request briefs from each party after which they will have an opportunity to respond.
GAO’s decision. The GAO must decide a protest 100 calendar days after the date on which it was filed. The GAO never misses this date so there is at least an end in site. The GAO’s decision will take the form of a recommendation in which the agency always follows. If you win, several forms of relief are available. If the defect was based exclusively on proposal evaluations, the GAO may limit its recommendation to re-evaluate all proposals already submitted. Or, the GAO may recommend broader relief such as reopening discussions, soliciting revised proposals and making a new source selection decision, If the GAO decides no other remedy is available it may recommend the agency reimburse you for your bid and proposal costs or in addition, it may recommend the agency reimburse the cost, including attorney fees, of filing and pursuing your successful protest. Keep in mind that unless you are a small business, the so-called “reasonable” attorney hourly fees will rarely cover actual legal fees.
Additional options. If you lose the protest, you have three options: (1) accept defeat and move on (2) ask the GAO to reconsider or (3) appeal to the Court of Federal Claims. The first option is usually the most sensible since reconsideration and appeals are usually unsuccessful. However, there are a number of recent cases that have been reversed by the Court so if there is enough at stake and you are convinced of your position and have the stomach for more expenses then the third option may be warranted.
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To discuss your needs, contact Bill Lennett, Principal, at 1-925-362-0712 or email him at
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