Contractors spend months, if not years, preparing a bid on a single federal contract. So, when the investment pays off and you win the contract, it is a punch to the gut to see a competitor protest your award. Awardees all too often assume the procuring agency and/or the Department of Justice (DOJ) will adequately defend the procurement. Awardees don’t just take the punch, but they get in the ring and punch back as an intervenor in the protest. For government contractors, intervening in a bid protest is almost always a strategic necessity—relying solely on the government to safeguard your interests is a gamble that can cost you the award, damage your reputation, and jeopardize your most confidential business information.
What Happens When Sitting on the Sidelines Goes Sideways?
The Court of Appeals for the Federal Circuit recently held oral argument in Global K9 Protection Group LLC v. United States. While the Federal Circuit did not issue its decision yet, the discussion between the Judges and parties is enlightening. Hearing the Judges’ candid thoughts on, and the lawyers’ arguments about, who is to blame for the problems that befell the awardee serves as a stark reminder of the why it is so risky not to intervene.
In the Global K9 protest, the awardee, K2 Solutions (K2), initially chose to sit on the sidelines and to not intervene after receiving a redacted version of the original complaint filed with the Court of Federal Claims (COFC) that did not appear to challenge its proposal. However, once DOJ produced the administrative record, the protester filed an amended complaint—this time alleging that K2 made material misrepresentations about its past performance.
K2 made the choice not to intervene, so its attorneys never saw the amended complaint, and because the protester never filed a redacted version of that document, K2 did not know its proposal was under attack and did not participate in the case at COFC. Thus, K2 was blindsided when COFC found that K2 made intentional, material misrepresentations and enjoined K2’s award, disqualifying it from performance. To make matters worse, the agency subsequently initiated termination proceedings on another K2 contract, ultimately terminating it for default. When K2 finally understood what was at stake and attempted to intervene after COFC’s decision was issued, COFC denied the motion to intervene as untimely. While K2 appealed (the appeal being the source of the oral argument referenced above), the Federal Circuit had yet to rule on the case, and it may be too little, too late.
Because K2 did not intervene and had no representation admitted to the protective order, this nightmare scenario unfolded unbeknownst to K2, leaving them with no opportunity to defend their award and reputation, and no opportunity to stop the agency from terminating their existing contracts due to the fallout from COFC’s decision.
Why is Intervention Important?
While retaining counsel qualified for admission to the protective order at the Government Accountability Office (GAO) or COFC requires resources, intervention is not always an expensive endeavor and K2’s disastrous situation demonstrates that the risk of not committing some resources to intervention is incalculable. Even if you are not interested in full-scale representation where your attorney actively assists the agency and/or DOJ in defending your award, limited intervention is advisable and you cannot sit on the sidelines while others litigate issues that directly affect your business because:
- The government does not represent the awardee or its interests. Take it from COFC, which has explained that “the government and the offerors have distinct interests.” That quote should be the North Star for awardees: even when the agency’s interests appear aligned with yours, those interests are not identical. Government counsel does not defend the awardee’s business, but the integrity of the agency’s procurement. When allegations arise about your proposal, your past performance, or your representations, no one is going to defend you unless you have counsel under the protective order.
- What you don’t know can hurt you. Awardees often underestimate how critical redacted filings are to staying informed. The rules and the reality vary significantly between GAO and COFC:
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- At GAO, protesters must file a redacted version of the initial protest within one day, and the Contracting Officer (CO) must provide the redacted protest to interested parties (i.e., the awardee). However, with respect to supplemental protests (allegations arising after the initial protest filing) and other filings, GAO requires parties to file redacted versions only if the parties request them. Even if the parties do file a redacted supplemental protest, GAO’s docket is accessible only to parties under the protective order—if you do not intervene, you will not automatically receive those redacted filings, and you may never know they exist to request them. In short, you may never learn that your business became a target.
- At COFC, the protective order requires parties to “promptly” serve proposed redacted versions of sealed filings, but enforcement is inconsistent. As Global K9 shows, parties sometimes fail to file redacted versions entirely. Like K2, an awardee who does not intervene may be completely unaware that a party challenged its proposal until the court issues a decision or it’s otherwise too late to defend yourself.
How Can You Make Intervention Work for You?
Intervention is not a one-size-fits-all endeavor—your lawyer should tailor their representation to fit your company’s needs. Where the allegations against your company are significant or retaining the award is critically important to your business, your legal budget may contemplate greater attorney involvement such as advocating for a bridge contract to your company, filing a request for dismissal or supporting the agency in its request for dismissal, engaging in discussions with agency counsel to highlight the benefits of defending the award (versus corrective action), etc. Where your budget or the issues in play may not require a full-court press, your counsel can scale back to lower-cost tasks that will still protect your interests such as monitoring filings under the protective order, reviewing amended complaints and supplemental protest grounds, alerting you to risks and issues affecting your award, and submitting targeted briefings only when necessary. At minimum, you should remain informed and protected and, depending on the scenario, your lawyer may be able to keep you informed without duplicating the government’s efforts or incurring unnecessary expense.
What is the Bottom Line for Protecting Your Bottom Line?
Failing to intervene in a bid protest leaves your award, your reputation, your confidential information, and, in some cases, your other contracts, unprotected. Without counsel under the protective order, you may never learn that your proposal is under attack until the damage is done and, without redacted filings, you cannot meaningfully monitor the case from the outside. Intervention is the only reliable way to ensure that your counsel can: 1) receive all the information, 2) respond to allegations about your proposal, and 3) protect your confidential information, your award, and your business.
If your award is being protested at GAO or COFC, or if you have questions about this topic or bid protests in general, please contact Katie Burrows, Eric Valle, Josie Farinelli, or another member of PilieroMazza’s Bid Protests Team.
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If you’re seeking practical insights to gain a competitive edge by understanding the government’s compliance requirements, tune into PilieroMazza’s podcasts: GovCon Live!, Clocking in with PilieroMazza, and Ex Rel. Radio.
