Decision To Protest
If you do decide to protest, it is in your best interest to call counsel as soon as possible. Contract law can be very complicated and it would be a very good idea to consult with your legal counsel.
If you do decide to protest, you have avenues that can guide you through the process. You can go to your local PTAC to get started in the process and/or seek legal counsel. You also should familiarize yourself with Part 33.1 of the FAR. This will help you understand the requirements and your rights.
Disputes
A dispute is when a government contractor has issues or material disagreements that relate to the contract itself and therefore files a claim.
A claim is defined as a demand by one of the contracting parties seeking, as a matter of right, the payment of money; the adjustment or interpretation of contract terms, including the time of performance. This also includes other relief that arises under or relating to the contract.”
The Government Would Like to Keep Contract Conflicts Out of Court
All contractors have the right to dispute and appeal. However, the government prefers to try to resolve all contractual issues in controversy by mutual agreement at the contracting officer’s level. The government expects you to use reasonable efforts to resolve controversies, before the submission of a dispute.
Remember To Be Reasonable
When an unfair decision is put forth then it definitely should be protested with voracity. However, you should be reasonable in your claims. The federal government is a very lucrative customer and you do not want to harm this relationship for unnecessary reasons.
What Do You Do If The Government Makes A Decision You Disagree With Regarding a Contract?
A small business has several remedies that can range from filing a basic protest to taking the government to court.
Disputes Are Only For The Contractor
Only a contractor is allowed to file a dispute claim. This means that subcontractors can not enter into the federal dispute process. This is because the contractor is an original party to the contract.
Typical Contractor Disputes
Some common contractor disputes are as follows:
Defective specifications
Changing delivery dates
Failure of the government to supply a contractor with what he/she needs to properly fulfill the requirements of the contract
Any other “event” that would keep a contractor from completing the contract or from being able to perform the contract.
The dispute is triggered when one of these events occurs and all informal attempts to resolve the issue fail.
Procedures for Disputes
For a dispute, a contractor is required to submit the claim in writing to the contracting officer.
The contractor should describe the following in the claim:
Situation
State
What action the claim is asking for
Request a final decision.
The contracting officer will have 60 days to respond after receiving the written notice. If the contractor has not heard from the contracting officer in this time period then the request is considered denied.
If the claim is denied, the contractor can file a written “Notice of Appeal” with the Contracts Appeals Board and send a copy to the contracting officer. The contractor must do this within 90 days of the denial.
Protesting A Bid Or Award
You must be an interested party, which means a prospective bidder who will be affected by the award economically. This usually means that you will receive the award if your protests are sustained.
One such challenge would be that the bid was defective. A defective bid can include the following:
The omission of a required provision
The ambiguity of Important facts
Indefinite evaluation factors.
The termination of a contract may also be protested if the protest alleges that the termination was based on improprieties in the award of the contract. This means that you can protest the bid, award, or termination of the contract. Make sure that you are very aware of the deadlines set for a protest.
Protesting A Defective Bid
These are some common grounds for a defective bid:
The bid is not detailed enough or vague:
It’s too detailed: SOW too long
It’s too restrictive: it uses standards or specs that are not needed.
More time is needed to respond
It contains ambiguous statements: which do you want?
There are many brand names or equal issues.
There are small business issues: such as Hubzone and the wrong size standard
Failure to meet small business set-asides
What Is The Amount Of Your Dispute
If Your Claim is under $100,000 then going through the dispute resolution process will be faster than if your claim is over this amount. This is because the Board of Contract Appeals is required to make a decision within 60 to 120 days.
The smaller claims will usually take priority and the board will postpone an appeal concerning a larger dollar amount contract. The Court of Federal Claims could take more than a year just to reach the trial stage. If the dollar amount of the contract is large the dispute could conceivably go to the U.S. Supreme Court. So it sometimes is smart to think about a strategy for your disputes based on the dollar amount that you are seeking in your claims. This is why seeking legal counsel is a good idea.
Please get legal assistance, particularly if you decide to pursue the claim beyond the dispute process. For more information, check out the GAO’s Bid Protest site.
Remember Nothing Happens Until You Register With SAM.
One of the first things that one needs to do is to be registered with SAM.
SAM stands for System Award Management.
To do any business with the federal government, you must register your business in the System for Award Management directory. The government will not hire any type of business (large or small) that has not registered in the SAM directory.
Please read one of the helpful blog articles on our site like Everything You Need to Know About SAM for Small Businesses. These blogs will help give you all the information you need to understand how we can help make the process very easy for you. Sam Directory will happily guide you through this often confusing process. With our help, you will be able to be on the path to government subcontracting quickly and efficiently.
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