The decision to protest a bid is an important one that can have long-lasting ramifications for a contractor. A bid protest can make or break a contractor in this industry, and any contractor that is considering moving forward with a protest should take a moment and consider their course of action.
Below, a Charlotte contractor attorney will be discussing what contractors should consider before filing a bid protest. For any questions regarding the protest process and if it’s the right move for your company, consult with a Charlotte construction litigation lawyer from Cotney Construction Law.
1. Can You Prove That a Bid Was Awarded Unfairly?
As reported by the 2018 GAO Bid Protest Report, nearly half of all bid protests are successful. These bid protests were successful in large part because they proved that the bid process consisted of an unequal technical evaluation, an unreasonable cost or price evaluation, or a flawed selection decision.
As we’ve covered previously, it is absolutely worth it to protest a bid, but you must be able to prove that the bid was either improperly evaluated or awarded through bias, which requires the collection and presentation of evidence — no small feat. Your first step should be to attend the standard debrief to discover who won and the agency’s reasoning for awarding the bid. Consult with a Charlotte contractor lawyer to determine if your evidence and argument are sufficient to win a bid protest.
2. Will Your Reputation Take a Hit?
As mentioned above, you must only protest bids that are awarded unfairly. Protesting a bid out of spite will undoubtedly result in your company’s reputation taking a hit. And while government agencies are prohibited from showing bias in the selection process, they will be far less willing to work with you in the future. Remember, every bid protest you submit threatens to stall projects and stop agencies from hitting their deadlines. Again, you must only submit a bid protest if you can prove that a bid was improperly evaluated or awarded. Even if your company successfully protests this bid, it could result in your company missing out on crucial and lucrative projects in the future.
3. How Much Time Do I Have?
If your bid has been rejected, you likely have a very short window to formulate a plan and submit a protest to the agency, usually only 10 business days after the contract was awarded. If you elect to protest a bid after this 10-day period, it is unlikely that contract performance can be halted. You can forgo the contracting agency and file a protest directly with the Government Accountability Office (GAO); however, the GAO’s decision will be final, and you will be unable to file an appeal. Consult with a Charlotte bid protest lawyer to determine if it is in your best interest to file a bid protest directly with the GAO.
4. What Do You Stand to Gain?
It is only ever worth it to protest a bid If the contract amount exceeds the cost of protesting the bid. For larger construction projects valued in the hundreds of thousands of dollars, this is an easier decision to make. But you must also ask yourself if you are able to commit resources to the bid process, especially if the protest escalates from the GAO to the U.S. Court of Federal Claims (COFC). You must be willing to see a bid protest through to the end.
If you decide that a bid protest is not worth it, you can always attend the standard debriefing, voice your displeasure, learn who won and why your bid scored lower, and apply what you’ve learned to your next bid. But in doing so, you could be missing out on a lucrative contract that means the difference between long-term success and bankruptcy. With so much on the line, it only makes sense that so many of our clients reach out to our construction law office for assistance with navigating the bid protest process.
5. Do You Have Legal Representation?
In deciding to move forward with a bid protest, you should do so only with the assistance of a Charlotte bid protest attorney, especially if you are faced with taking a government agency to court. Filing suit with the COFC is a process that can take years to resolve. For this reason, it is in your best interest to partner with an aggressive attorney who can not only fight to resolve this issue in a timely manner but also represent you in the event that you have to present your argument in court.
As mentioned above, for any chance of suspending contract performance, you have only 10 days after the bid is awarded to submit a bid protest. Make the best of those 10 days. Partner with an experienced and aggressive Charlotte bid protest lawyer from Cotney Construction Law who can help assist you in collecting, evaluating, and presenting evidence of an improperly awarded bid.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.