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 ranging 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.
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 actually taking the government to court.
First, it is important to understand the basic terminology in order to understand the options available to a company.
What Is The Difference Between A Protest vs A Dispute?
A protest involves a defective bid or the awarding of a contract to a different bidder. In contrast, a dispute involves an issue with the contracting officer that arises after you have been awarded the government contract.
The following are the three Federal Bid protest Levels:
- Judicial action was brought at the United States Court of Federal Claims (COFC).
- Protest filed with the (GAO) Government Accountability Office.
- Agency-Level protest filed with the agency conducting the procurement.
It is important to note that a protest must be filed within 10 days after the basis of the protest is known or should be known. Any protests that exceed this 10-day limit will automatically be thrown out. If you want to go forward you will have to go to a higher level like the United States Court of Federal Claims.
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 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.
What Of The Timing Of The Protest In The Contracting Process?
A protest received before the award of the contract means that the contract will not be awarded until there is a decision on the protest. This is bypassed if the items or services of the contract are urgently needed, and a delay in performance will cause unneeded harm.
If the protest is received within ten days of the award of the contract, then the performance of the contract will be suspended until the protest is resolved. It is on the contracting officer to notify all the other eligible parties affected by this suspension of performance due to the protest.
If a protest is received ten days after the contract is awarded, the agency procedures will determine the handling of the protest. The contract performance might not be suspended or terminated in these cases unless it is likely that the award will be invalidated and the delay will not be prejudicial to the government’s interest.
General Accounting Office
Although it is highly encouraged that companies seek resolution within the contracting agency, if this proves ineffective, then a company can file a protest with the General Accounting Office or GAO.
However, you must understand that if you totally bypass the agency and go to the GAO, then the GAO’s decision is final. This means that you will not be allowed to appeal the GAO, and this ruling will be final.
This means that it is usually more advantageous for a company to go through the contracting agency than to go directly to the GAO. Going through the original agency also allows a company more time to gather the information that can help if later protests go to another type of forum.
Matters that can not be protested to the GAO:
- An affirmative determination of responsibility by the contracting officer — A determination that a bidder is capable of performing a contract will not be reviewed unless there is a showing of possible bad faith on the part of government officials or that the definitive responsibility criterion in the solicitation was not met.
- Procurement integrity — Protests not filed within the required time limits
Make sure you read the second part of this series to find out more about disputing or protesting a contract award.
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