Last September, we wrote about the importance of an awardee intervening in a bid protest challenging the contract award before the U.S. Government Accountability Office (“GAO”). By intervening, the awardee protects its right to review documents related to the award decision in the agency report, respond to protest grounds and ensure its interests are represented. See Skipping Intervention in a GAO Bid Protest Can Be a “Pound Foolish” Exercise by Patrick Rothwell.
But what about other disappointed offerors? Can they intervene in the protest filed by a fellow disappointed offeror if they also believe the agency erred in its evaluation? The short answer is “no.”
GAO bid protest regulations have a narrow definition of an “intervenor,” permitting only the awardee to intervene if award has been made. Therefore, offerors are not allowed to piggy-back on the protest of another party, waiting for another party to make an initial protest before intervening to gain access to the agency report and find support for its own protest grounds. This means a disappointed offeror who is considering challenging a contract award to another firm should not rest on its laurels with the hope that it can intervene in another party’s protest. Further, an offeror should not assume that another party’s protest will lead to a desired outcome, as other protestors may seek relief or corrective action that does not address all offerors’ concerns.
Instead, each disappointed offeror must diligently pursue information that may reveal grounds for a protest. After award, the offeror has three calendar days to request a debriefing, which may provide grounds for a possible protest. The debriefing is generally held within five days after the agency receives the debriefing request. After the debriefing, the offeror must file its own protest within ten calendar days of when it knew or should have known the basis for the protest.
Sometimes, GAO will consolidate separate protests of the same award when the agency believes it will be more efficient to do so. However, GAO is under no obligation to do so and it may opt to keep each protest of the procurement separate. If offerors do not act quickly in filing their own protest, the brief window for filing will pass and offerors will be left without any option to challenge the evaluation.
The circumstances are slightly different if no award has been made. In such a case, GAO’s regulations allow a potential offeror to intervene in a pre-award protest of the solicitation if the offeror appears to have a “substantial prospect” of receiving the award if the protest is denied. The offeror wishing to intervene must advise GAO and the other parties of their intent to do so, and then contact GAO to learn whether they will be permitted to intervene. Though the regulations allow for pre-award intervention, GAO does not permit such intervention as a matter of course. The risk in waiting to intervene is that the window for filing a protest—again, ten days after discovering protest grounds may close and GAO may deny the intervention. Therefore, as with the post-award scenario, if a potential offeror wants to challenge the terms of the solicitation, the safest route for the offeror is to file its own protest rather than aiming to intervene.
In conclusion, while it may be easier to rely on another protestor laying the initial groundwork to get corrective action. But if a prospective offeror or disappointed offeror knows it has grounds for a protest, it should protect its interests by diligently filing its own protest rather than attempting to intervene.
About the Author: Jackie Unger is an associate with PilieroMazza in the Government Contracts Group. She may be reached at firstname.lastname@example.org.