In federal procurement, bidders or offerors who are not awarded a contract have the right to protest contract award with the Government Accountability Office (“GAO”), Court of Federal Claims (”COFC”), or procuring agency itself. In specific circumstances, bidders or offerors may also file a protest prior to award.
During a bid protest, the awardee, or any other party with proper standing, may intervene in the proceeding to protect its right to award. Intervening in a bid protest can help defend your hard-earned award. Awardees who intervene in bid protests have a higher likelihood of retaining their award than awardees who elect not to intervene.
What Does it Mean to Intervene?
Intervening means you, the awardee, appear in the protest with the opportunity to be heard by the GAO or COFC. Generally, intervention is not allowed at protests at the agency level. Although the bid protest parties are the agency/Government and the contractor/protestor, as the awardee, you naturally have a vested interest in maintaining the award.
Intervention Lets You Fight
The greatest benefit of intervening is that a successful intervention in a bid protest may result in the denial or dismissal of the bid protest. After all, who knows the strengths of your proposal better than you? Who better to fight for your award than you, armed with a protest attorney? As an awardee, intervention means working with the Government to ensure it defeats the protest. Awardees who intervene in bid protests may also be able to assist agency attorneys either directly, or indirectly by filing comments on the agency report or responding to other protest filings. Under a protective order, your lawyer will be able to see protected and confidential information that can be used to explain why the agency award to your company was correct under the terms of the solicitation and law of bid protests.
Protective Orders and Need for an Attorney in the Protest Battle
The GAO and COFC often issue protective orders to protect confidential and proprietary information. However, intervenors can access this confidential information, including the agency report. Intervening allows awardees access to protected agency report documents concerning competitor’s proposals and the Government’s source selection process. Access to protected information can only be obtained by intervening in the bid protest through your attorney admitted to the protective order. An awardee cannot gain access to this protected information on its own.
Who May Intervene?
The GAO and COFC have different criteria that govern which parties may intervene in a bid protest.
GAO Intervention
The GAO defines an intervenor as “an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.” (4 CFR 21(b)(1)). In most cases, an “intervenor” will refer to the contract awardee. However, in a pre-award protest, the contracting officer will provide notice to offerors of the protest and a copy of the redacted protest. In these pre-award protests, while multiple bidders can intervene, as stated by GAO in its publication “Bid Protests at GAO: A Descriptive Guide,” the GAO generally allows pre-award intervention only in exceptional cases and not as a rule.
COFC Intervention
The Court of Federal Claims has two types of intervention, permissive intervention, and intervention as a matter of right. Under Rule of Court of Federal Claims 24(a), the COFC may allow anyone to intervene who (1) files a timely motion (2) is either given a conditional right to intervene by a federal statute or has a claim or defense that shares with the main action a common question of law or fact; and (3) does not unduly delay or prejudice the adjudication of the original parties’ rights.
As for intervention as a matter of right, the COFC must permit any party who (1) files a timely motion; and (2) is given an unconditional right to intervene by federal statute or claims an interest relating to the property or transaction that is the subject of the action.
GAO Intervention and Later Protests at Court of Federal Claims
Intervening at the GAO may preserve the right to intervene again if the bid protest is later continued at COFC. When GAO bid protest grounds are later brought at the COFC, the COFC may not allow awardee intervention if the awardee did not intervene during the GAO bid protest. Intervening in the GAO bid protest may therefore allow an awardee to advocate for itself later down the line if the protestor continues with a protest to the COFC.
Intervene as Early as Possible
Timeliness is key to intervening in bid protests at both GAO and COFC. Both permissive intervention and intervention as a matter of right require intervention to be timely at COFC. When determining whether a motion is timely, the COFC looks to three criteria: (1) the length of time during which the would-be intervenor actually knew or reasonably should have known of his right to intervene in the case before he applied to intervene; (2) whether the prejudice to the rights of existing parties by allowing intervention outweighs the prejudice to the would-be intervenor by denying intervention; and (3) the existence of unusual circumstances militating either for or against a determination that the application is timely. Sumitomo Metal Indus., Ltd. v. Babcock & Wilcox Co., 669 F.2d 703, 707 (C.C.P.A. 1982). In addition, courts should generally construe these criteria in favor of intervention. Westlands Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir. 1983).
The Benefits of Intervening is Your Company Has a Voice in the Protest
However, the greatest benefit of successful intervention in a bid protest is that you, as awardee, have a voice in fighting to make sure the protest decision will result in the denial or dismissal of the bid protest. As an awardee, this means that intervention ensures your company retains the award. It is our experience that awardees who intervene in bid protests have a higher likelihood of retaining their award than awardees who elect not to intervene and simply stay on the sidelines.
To obtain help intervening in a bid protest, please reach out to the Oles bid protest team attorneys: Howard W. Roth roth@OLES.com, Joseph Haughney at haughney@oles.com or Sydney M. Sullivan sullivan@oles.com at Oles Morrison Rinker & Baker, LLP.
