Key Takeaways

  • Protests allow disappointed bidders to challenge federal contract awards or solicitations that may violate procurement law.
  • There are three primary venues for protests: the awarding agency, the Government Accountability Office (GAO), and the U.S. Court of Federal Claims (COFC).
  • Protests must be timely—generally within 10 days of the grounds for protest being known.
  • Pre-award protests target solicitation flaws, while post-award protests address errors in contract awards.
  • Procedural mistakes—such as lack of standing or untimely filing—can derail otherwise valid protests.
  • Successful protests may lead to re-evaluation of bids, corrective action, or termination of a contract.
  • Working with a qualified government contracts attorney can significantly improve the protest’s effectiveness.

A government contract protest process arises when a party believes that the competitive bidding process for a government contract was violated. The competitive bidding process for government contracts, whether at the state or federal level, contains standard steps regulating the way contracts are accepted and awarded.

These standards have either been developed over the years through government contract case law or can be created through statutes to ensure fairness in dealings between companies and the government. They also seek to establish that no partiality has impacted the final decision, for example through previous business dealings or, as can be the case, improprieties arising from favoritism or even graft.

Typical Competitive Bid Standards

Although the exact language in any government contract may vary, competitive bidding standards decree that:

•The bidding process is open to all parties and will be conducted in a transparent manner.

•All final decisions must be unbiased and based purely on the criteria established in the .

•All bidders are placed on an even playing field, meaning that all bidders must be treated fairly and judged on an equal basis.

For instance, RFPs may insist that hiring quotas based on race or gender be met by companies bidding on the project, specify certain construction materials that must be used on the project, or set requirements that small business subcontractors be included in all general construction contracts. If any of these standards are not met, the government has the right to automatically turn the bid down. The government can only waive any contract bidding standards if they are waived for all bidders, and in effect, the RFP is amended.

If on the other hand, the government fails to comply with the standards in the competitive bidding RFP when awarding the contract, then the resulting contract can be determined to be invalid or even illegal as a matter of contract law. If a party believes that it lost out on a contract because it was wrongfully awarded, that company has the right to file a government contract protest.

Who Can File a Government Contract Protest?

Only an "interested party" may file a protest under federal procurement law. To qualify as an interested party, the protester must be:

  • An actual or prospective bidder or offeror;
  • With a direct economic interest affected by the award or proposed award.

This typically excludes subcontractors or vendors not directly involved in the bid. However, small businesses and contractors affected by alleged solicitation flaws or award irregularities often meet the requirement. For example, a bidder ranked second in a flawed evaluation is usually considered to have standing.

The Difference Between a Protest and a Dispute

In terms of questioning the awarding of a government contract, two processes apply. A party can either “protest” or “dispute” the contract according to government contract law. While on the surface there may seem to be little difference between the two options, in practice, they are not the same. It essentially boils down to the status of the party taking the action.

•A “protest” occurs when a party that has lost out on a bid files a claim that the contract was awarded unfairly.

•A party to a “dispute” is one that has been awarded a contract but has a disagreement with the contract officer who awarded the contract or specific terms in the contract.

Federal law provides for three levels of protest resolution. In regard to the first two, all protests must be filed no more than10 days after the wronged (alleged) party becomes aware of the basis for the protest. The levels are:

•A protest filed with the agency that awarded the contract in question. This is often the first step a company will take.

•A protest filed with the , which oversees all government contracts.

•A lawsuit filed in the United States Court of Federal Claims (USCFC). This is the highest level of protest available and most likely the costliest step.

Protest Venues and Jurisdictional Differences

There are three forums where protests may be filed:

  1. Agency-Level Protests:
    • Filed with the agency that issued the solicitation or awarded the contract.
    • Often the fastest and least costly option.
    • Agencies have 35 days to resolve the protest.
    • Limited appeal rights if the outcome is unfavorable.
  2. GAO Protests:
    • Must be filed within strict deadlines (generally 10 days of adverse action).
    • GAO has 100 days to issue a decision.
    • Offers a structured process with protective orders and hearings if needed.
  3. Court of Federal Claims (COFC):
    • Provides a formal judicial review under the Tucker Act.
    • There is no fixed deadline, but protesters must file before contract performance begins or risk dismissal.
    • Allows more discovery and broader legal remedies, but costs more and takes longer.

Choosing the right venue is crucial and depends on protest goals, urgency, budget, and complexity.

Steps for Filing a Protest

There are two types of grounds for protest: pre-award and post-award. As their names imply, each occurs at a different stage of the bidding process.

•Pre-award protest grounds are based on the accusation that the RFP was unclear, biased against them, or unduly restrictive.

•Post-award protests are filed when it is alleged that the awarding agency did not follow established bid award criteria, showed favoritism or had a conflict of interest.

In order to file either type of protest, a party must establish that they are an “interested party,” meaning they have an economic interest in the outcome of the bid in question. In general, most protests are lodged after the contract has been awarded, even the government has terminated the contract.

Although both state and federal agencies take steps to guarantee that all bids for work or equipment are awarded fairly, there are bound to be instances where a party believes itself wronged. The government contract protest process gives their grievances a voice.

Common Grounds for a Government Contract Protest

Some of the most common and successful protest grounds include:

  • Improper Evaluation of Proposals: Misapplication of evaluation criteria or unequal treatment.
  • Unreasonable Cost or Price Evaluations: Failure to follow cost realism analysis or price reasonableness reviews.
  • Unfair Competitive Advantage: When a competitor has insider information or unequal access to resources.
  • Improper Discussions or Communications: Such as allowing one offeror to revise a proposal unfairly.
  • Unduly Restrictive Requirements: Overly narrow solicitation terms that unreasonably limit competition.
  • Organizational Conflicts of Interest (OCI): When the winning bidder has conflicting roles that bias the process.

Each protest should clearly identify which regulation or standard was allegedly violated.

Avoiding Common Bid Protest Mistakes

Even strong protests can fail due to procedural errors. Avoid these frequent pitfalls:

  • Missing Deadlines: Strict timelines apply; late filings are routinely dismissed.
  • Lack of Standing: Only interested parties can protest—ensure your economic interest is clear.
  • Failure to Raise Issues Early: All known issues must be raised at the first opportunity.
  • Insufficient Detail: Vague or unsupported claims are unlikely to succeed.
  • Ignoring Mandatory Requirements: Such as redactions in GAO filings or incorrect delivery methods.

Using experienced legal counsel helps ensure compliance with protest rules and procedures.

What Happens After a Protest is Filed?

Once a protest is filed, the agency must take the following steps:

  • Automatic Stay (GAO Protests): If filed within 10 days of contract award or within 5 days of debriefing, the agency must halt performance until the protest is resolved.
  • Agency Report: The agency will respond with a detailed explanation and justification for its decision.
  • Protester’s Comments: The protester must reply to the agency report within 10 calendar days.
  • Decision Timeline: GAO will issue a decision within 100 days. COFC rulings vary by case.

If the protest is sustained, typical remedies may include:

  • Re-evaluation of bids;
  • Corrective action (such as amending the solicitation);
  • Contract termination and re-award.

Frequently Asked Questions

1. What is the deadline to file a government contract protest? Typically, within 10 calendar days of when the protester knew or should have known the basis for protest. For post-award debriefings, there’s a 5-day rule to trigger an automatic stay.

2. Can subcontractors file a protest? Generally, no. Only actual or prospective prime contractors with a direct economic interest qualify as interested parties.

3. What is the difference between a GAO protest and a COFC protest? GAO protests are administrative and quicker, while COFC protests are judicial, more formal, and potentially more thorough but costlier and slower.

4. Can I protest a contract award if I never submitted a bid? In most cases, no. Only prospective bidders who could have competed if not for the flaw have standing.

5. What does it mean if the GAO “sustains” a protest? It means GAO agrees with the protester and may recommend corrective action, such as re-evaluation or contract re-award.

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