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 resolving 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 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.
First, it is important to understand the basic terminology 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 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 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 decide 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 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 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 delay of performance will cause unneeded harm.
If the protest is received within 10 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 that will be affected by this suspension of performance due to the protest.
If a protest is received 10 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.
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.