When You Lose 8
To have loved and lost is better than never to have loved at all, but to have spent company money chasing an opportunity and then to lose—that stings.
Since even the best of companies lose, oftentimes there’s little you can do except cope. The first step is to request a debrief, if you’re entitled to one. And if you’re entitled to one, ask for it; on the rare occasions the government volunteers feedback, you should want to hear it. But if there’s reason to believe that the government was prejudiced against you, there’s recourse through the protest process.
Debriefs
Companies competing in a negotiated procurement are entitled to a debrief. You have three days to request one, in writing, after the day on which you get notification either that you’ve been eliminated from the competitive range or that the award went to another company.1
Companies eliminated from the competitive range in a negotiated procurement have a choice: request a debrief immediately, or ask for it to be postponed until after the award. If you wait, chances are you won’t be able to file a protest to the Government Accountability Office (GAO) because you’ll have missed the GAO’s deadline for doing so (more about protest filing deadlines later in this chapter).
A postaward debrief contains the most information since the government is naturally reluctant to say much while a procurement is ongoing. In any case, it would be impossible for an agency to summarize why the award was given to a competitor during a competitive range elimination debrief, since the final awardee hasn’t yet been selected. If you’re thinking about filing a protest, ask for your debrief immediately. If you’re more interested in comparing the winning proposal to yours, and so almost certainly forgoing the chance to protest, ask for it to be postponed.
Competitors for multiple-award contract task or delivery orders worth more than $5 million, not including General Service Administration (GSA) schedule orders, are also entitled to a debrief, and likewise have three days to request, in writing, a debrief.2
Companies on the losing end of a best value procurement made through simplified acquisition procedures can request a “brief explanation” of the government’s rationale for picking another company—and brief those explanations are, usually amounting to a phone call lasting a few minutes.3
In the case of a competition among schedule holders, the government usually doesn’t offer a debrief (and we use the word competition in the context of schedule procurements very loosely, since GSA schedule orders aren’t subject to the same meticulous rules negotiated procurements are). But schedule holders responding to a schedule-based best value request for quotes for hourly-rate services are entitled to a “brief explanation” of their loss.4
Protests
There are three main types of protests: a protest that some aspect of the solicitation itself is prejudicial to your company; a protest that exclusion from competitive range or other aspect of the negotiated stage of a procurement was unfairly done; or a protest that the final selection process was flawed. These are pre-bid, preaward, and postaward protests, respectively. Pre-bid and preaward protests often get imprecisely lumped together as preaward protests, since a pre-bid protest does occur before contract award. But the two are significantly different; protests made after government receipt of a proposal or quote have far more in common than protests made before. When we refer to preaward protests, we only mean protests regarding government behavior during negotiation, after company submission of a solicitation response.
Protesting is a check and a balance; it’s meant to root out bad contracting practices. Losing a procurement is not evidence that the agency was biased against you. Protest decisions aren’t proposal reevaluations that ensure the “right” contractor is chosen. Federal protest attorneys and judges examine only whether agency judgment was reasonable and done in accordance with the regulations. Even should you be the victim of a government-made mistake, to win a protest the error must have been prejudicial to your chances of winning the competition. Your company must have had a substantial chance of winning but for the government’s error if your protest is to be upheld.
Grounds for sustaining a pre-bid protest include unduly restrictive solicitation, improper requirements bundling, ambiguous language, or unreasonable evaluation criteria.
Preaward and postaward protests can succeed if, for example, the agency held improper discussions with a competitor during negotiations, if it misunderstood your price, or if it made the award based on evaluation criteria different from those listed in the request for proposals or quotes.
There are three forums for most (i.e., not small business-specific) protests: the contracting agency itself, the GAO, and the Court of Federal Claims.
Filing a protest with an agency or with the GAO typically causes the agency to suspend further execution of the procurement, whether the protest is filed before or after a contract award. At the Court of Federal Claims, you can ask for a temporary restraining order or a preliminary injunction against the agency.
A protest to the GAO almost automatically activates a provision found in the Competition in Contracting Act of 1984 (CICA) that requires agencies to suspend procurements while the GAO evaluates a protest. Almost because the CICA (pronounced see-ka) stay kicks in not at the moment when a company files a protest, but the moment when the GAO in turn notifies an agency that one of its procurements is subject to protest.
Agencies can override an internal or CICA stay, and the perception among experts is that agencies are more likely to do so when the stay order originates from itself.
Because protests are an easy way to temporarily delay postaward commencement of work, some companies abuse the process in order to extend their incumbency or attempt to gain leverage with the winner. We don’t advise doing this. Feds, in the main, aren’t offended by a legitimate protest, even if your protest is ultimately dismissed. But in a market where much depends on reputation, the appearance of a penchant for Machiavellian dealing does you no good.
Most protestors’ first choice is to file with the GAO, which is widely recognized as the preeminent federal contracting protest venue thanks to its independence, expertise, and transparency. Companies like filing with the GAO because it’s quick. GAO closes out cases in 100 days or fewer.5 And it has a terrific procurement document disclosure process, although taking advantage of that means you’ll have to hire outside counsel, unless your company is so massive that it has in-house counsel firewalled from participation in competitive decision-making. Only attorneys disconnected from business decisions can review proprietary or confidential data turned up by the disclosure process. It is up to protestors to initiate requests for such data; the GAO won’t do so on its own.
The Court of Federal Claims is generally a second choice, mostly because filing a protest through it can be expensive thanks to attorney fees, and also because companies like to hold it in reserve as a possible backup venue should the GAO dismiss their protest.
For better or worse, agency-level protests are relatively rare, since most protest experts doubt agencies’ ability to fairly evaluate themselves. Agency-level protests also lack the kind of document disclosure process that the GAO facilitates. If the grounds for protesting are so obviously correct and well documented that no one could fail to see the wrongdoing, then, sure, you might file with an agency. But keep an eye firmly placed on GAO deadlines for filing a protest. Once you blow GAO timeliness deadlines for filing a protest, there’s no going back. The GAO is finicky in the extreme about enforcing timeliness rules.
Another word of caution about filing a protest with the GAO subsequent to filing with the agency: Do not look at it as the chance to build a better protest case. If the GAO believes that your protest to it is different from the one you submitted to the agency, it’ll reject your protest out of hand.
You also get only one chance for a stay; if you file first with an agency and your protest is rejected, the GAO will not delay the procurement again for you.
Only “interested parties” can file a protest, and for the most part it’s pretty clear who is one. The legal definition of an interested party accepted by the GAO and the Court of Federal Claims is “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.”6 Postaward, that means an offeror. Preaward, that means companies considering participation in the competition. Subcontractors, or potential subcontractors, are not considered an interested party.7
Circumstances under which the interested parties definition gets muddy often involve a protest against a GSA schedule order. The GAO dismissed a 2007 protest filed by a business without a schedule contract, whose objection was that the Army set aside a procurement for small businesses.8 But the protestor was not an actual or prospective bidder since it lacked a schedule, the GAO said, and so didn’t have standing as an interested party.
Material on which you base your protest comes from your dealings with the agency and, for preaward or postaward protests, information from the debrief, should you be entitled to one. But don’t treat every contact with the agency as a legal matter and drag an attorney to every meeting. Remember, the agency is your customer, if not in this procurement then potentially so in the future. An atmosphere of litigiousness causes unnecessary tension. A common phrase among contracting officers is “If you bring your lawyer, I’m going to have to bring mine.”
Filing a pre-bid protest
It is possible to resolve a problem with a solicitation’s requirements or evaluation criteria without having to file a protest. During some solicitations, there is a period before the response deadline during which companies can ask for clarifications, and those requests for clarification often result in ameliorative amendments to the solicitation language.
Even if there’s no question-and-answer period, you can still send questions and comments to the contracting officer in writing.
If you gain no relief, you must file a protest before the deadline for submitting a solicitation response. This is true regardless of whether you choose to file at the agency level or with the GAO. The Court of Federal Claims has a strong precedent establishing the same deadline. Filing a protest with an agency or the GAO will cause the agency to suspend work on the procurement. A protest with the court can cause the agency to voluntarily suspend work, but unless you convince a court judge to issue an injunction or a restraining order, there’s nothing to compel an agency to wait for the ruling.
If you decide to first file with an agency and the agency rejects your protest, you can still file with the GAO or the court. If you go to the GAO, you must do so within a ten-day period after the agency rejects your protest (if the tenth day should happen to fall on a weekend or federal holiday, you would have until the following business day to file). Should the deadline for submitting a solicitation response fall within the ten-day period following agency rejection, you can nonetheless proceed with the GAO protest.9
It’s essential to be aware that the ten-day period for filing with the GAO starts ticking when the agency delivers an “adverse action” against your protest. But the agency need not necessarily inform you of that adverse action, and you’ll be responsible for realizing that it occurred under the GAO’s application of the legal doctrine of constructive knowledge. For example, the agency can make it clear that it’s denying your protest by changing the solicitation language, but not in a way that resolves your objections.
Should you lose a pre-bid protest and still want to challenge the selection of the eventual winner (which will certainly not be you, if your objections are accurate), you must submit a response to the solicitation. This may seem counterintuitive—why would you respond to a solicitation stacked against you?—but it’s required because you must continue to participate in a flawed procurement to maintain your status as an interested party eligible to file a postaward protest.
IDIQ order protests
We said three forums exist for “most protests,” but in a major exception, only the GAO can hear protests filed on any grounds made against a multiple-award indefinite-delivery, indefinite-quantity (IDIQ) contract task or delivery order. The GAO can only consider protests over orders worth more than $10 million; there is no general protest forum for orders worth less.10
This is a recent expansion of GAO jurisdiction that federal agencies opposed, since they prefer the previous rules, under which the GAO was able to consider an IDIQ order protest worth any amount, but only on the very specific grounds that an order increased the scope, period, or maximum value of the IDIQ contract.11 Those protests typically lose, since IDIQs by definition are written to be broad in scope and have large maximum values.
Before the expansion of the GAO’s authority, the only other recourse companies had when upset about an IDIQ order was to file a Contract Disputes Act (CDA) claim with an agency, with the Armed Services Board of Contract Appeals or Civilian Board of Contract Appeals, or in the Court of Federal Claims.
It’s still possible to file a CDA claim, but one reason Congress widened the GAO’s jurisdiction is that a CDA claim can go forward only on the grounds that the agency managing the contract did not correctly implement the fair opportunity process by which all holders of an IDIQ slot receive a fair notice of every order opportunity that’s worth more than the simplified acquisition threshold. Contracting officers and judges will instantaneously dismiss a claim if they believe it to be a thinly disguised protest. As a result, a CDA claim under this circumstance pretty much means a demand for money.12 You can’t request a stay of procurement execution or a reconsideration of the fair opportunity competition; those are outcomes of a protest.
If a fair opportunity CDA claim is to be taken seriously, you’ve got to come up with a figure based on estimated loss of revenue. But even if your claim is upheld, it will be difficult to collect compensation since the basis for damages can’t be speculative, or based on pain and suffering, and proving lost profits is difficult. As a final disincentive, by filing a CDA claim, companies give up all intent to overturn the outcome of the competition; at this point, you must be out for blood (well, money).
Small business protests
Protests related to small business issues also present an exception to the three-forums rule. Most of these protests, such as a challenge to a competitor’s socioeconomic status, must go to the Small Business Administration (SBA). If you approach the GAO with such a protest, it’ll dismiss the protest for lack of jurisdiction.13 The federal government also considers an appeal over a solicitation’s NAICS code to be a SBA matter on the grounds that only small businesses are truly affected by a decision to use one NAICS over another.14 As with protesting to the GAO, protesting to the SBA is free.
The GAO will consider challenges to an agency’s decision to set-aside or not set-aside a standalone procurement for small or socioeconomic status businesses. The GAO accepts such protests only before a proposal or quote is due (these are pre-bid protests) and limits its review to a determination of whether contracting officers abused their discretion to make a set-aside decision, such as by not conducting sufficient market research.
Since small business protests are mostly exclusive to small businesses, we address them further in Chapter 11.
Protest Forum: The GAO
The GAO’s jurisdiction covers almost all of the government entities, excluding the Federal Aviation Administration, the Postal Service, and the Federal Deposit Insurance Corporation.
Agencies aren’t legally required to follow GAO recommendations. In practice, they almost always do. From federal fiscal year 2000 through 2009, agencies ignored the GAO exactly five times, which amounts to almost 0.04 percent of all resolved cases. Years go by without agencies failing to toe the GAO line.
Filing a protest to the GAO is straightforward. There are no formal briefs or other technical forms, not even a filing fee. All that’s necessary is a signed, coherent legal argument and a request for specific relief, along with an explanation of why the protestor is an interested party and how the protest is timely.15 Hearings, if held, can convene in locations other than GAO headquarters in Washington, D.C., or by telephone or video conference.16 The GAO posts online its protest regulations, as well as a well-written descriptive guide on how to file a protest. If you’re filing without an attorney, which we don’t recommend, closely read both documents.
As for the chances of getting relief, they’re decent. The GAO calls the rate at which that happens its effectiveness rate. From fiscal 2005 through fiscal 2009, the effectiveness rate was almost 41 percent of resolved cases (we’ve used a weighted average for all percentage calculations). That includes cases settled through alternative dispute resolution, in which agencies voluntarily took corrective action or in which negotiation resolved the protest. But of the subset of cases where that’s not possible and where the GAO finds enough merit in the protest to issue a written opinion, rulings in favor of the protestor averaged to 23 percent.
Relief isn’t the same as getting a contract award. Even if an agency corrects its mistake or the GAO sustains your protest, that does not mean that the agency will automatically award you the contract. The GAO won’t tell an agency which company should get a contract; at most, it can advise the agency to recompete the solicitation or to issue a new one. In the case of a contract already awarded to a company, it can advise the agency to refrain from exercising an option or to terminate it outright. The GAO does not hear complaints about contract administration, as that’s what boards of contract appeals are for.
As noted earlier, GAO protests trigger a CICA clause telling agencies to suspend procurement activity, including commencement of the work if the protest is postaward, while GAO evaluates the protest. Agencies can override the suspension, but they must justify doing so in writing on the grounds that urgent or compelling circumstances exist or that proceeding in the best interest of the United States.17 If an agency does this to you, you can try getting an injunction from the Court of Federal Claims.
The stay kicks in only after GAO places a phone call to the agency, notifying it of a protest. The stay is automatic only in the sense that once the phone call has been received by an agency, the stay comes into effect unless an agency acts to override it. It is not automatic in the sense that once you file the protest, the stay comes into force. If you push your filing close to the deadline, you run the risk of the call going unmade by the time the deadline expires. Remonstrations to the GAO that they should have made the call will not change things.
The deadline for filing a GAO protest varies according to circumstances—so much so that we’ve broken out the circumstances and their deadlines separately in the next section. In the meantime, let’s examine a common GAO stock phrase tied to deadline applicability: known or should have known.
The GAO countdown clock for filing a preaward or postaward protest starts ticking from the day that the GAO says the protestor knew, or should have known, the grounds for a protest. In most cases, GAO says “known or should have known” when throwing out protests on the grounds that they’re untimely since the protestor blew the deadline (the protestor should have known that the deadline clock was ticking and filed within the time allotted), or the protestor was already aware of supposedly new information presented in a tardy protest (the company already knew the grounds for protest, even if it says it didn’t know), or it should have known the grounds even if it actually didn’t. On rare occasions, the GAO might agree that a protestor legitimately could not have and should not have known about the basis for a protest filed long after a contract has been awarded, provided that the company submits its protest within the applicable timeliness deadline that kicks in once it actually came to know the protest basis.
Something important to keep in mind: known or should have known does not apply to pre-bid protests.18 If you spot prejudicial language in a solicitation, the only deadline is to file a protest before the day on which solicitation responses are due.
Outside counsel isn’t an absolute requirement for GAO protests, but there’s an art to using document disclosure after a protest has been filed that only dedicated practitioners do well—and remember, only attorneys disconnected from business decisions can review proprietary or confidential data turned up by the document disclosure process. For most companies, that means hiring outside attorneys.
The art comes in crafting a protest that’s sufficiently tied to legal and factual assertions for the GAO to take it seriously, yet broad enough to compel agencies to hand over a wide range of procurement documents in order to substantiate the protest. Agencies are required to give to counsel only the procurement documents related to a protest’s grounds.
Should you lose a GAO protest, you might consider filing for a reconsideration, though the chances of a reversal by the GAO aren’t great unless you’ve somehow uncovered new and startling evidence. Also, filing a reconsideration, unlike an initial protest, does nothing to stay the performance of a contract. If you’ve been turned down again and you’re determined to pursue the protest, your next stop is the Court of Federal Claims.
GAO protest deadlines, based on their circumstances
Deadlines for GAO protest change according to circumstances.
Prejudicial solicitations
Language prejudicial to your company in a solicitation requires a protest be filed before responses are due to the agency.
Belief that a procurement should or shouldn’t be a set-aside
File a protest before the solicitation responses are due.
Agency-level protest rejected
Protestors have ten days after receiving an agency “adverse action” regarding their protest to file with the GAO, assuming that the original agency protest was also timely. Timeliness deadlines at the agency level can vary. Should the tenth day fall on a weekend or a federal holiday, you have in this case until the following business day to file with the GAO.
Federal agency cancels a solicitation
You have ten days after the day on which a solicitation is canceled to file a protest. In this circumstance, should the tenth day fall on a weekend or a federal holiday, you have until the following business day.
Evidence of a violation of the Procurement Integrity Act
If you suspect an agency of divulging your procurement-sensitive data or otherwise violating the Procurement Integrity Act, you must first file a violation report with the agency within 14 calendar days after discovering the violation. If the violation of the act is the basis of your protest, the GAO will not consider the protest unless you have filed the report. If you fail to file the report within 14 days, you’re out of luck with the GAO. If the 14th day falls on a weekend or holiday, file on a business day before the calendar days expire.
When filing with the GAO, if you want the CICA stay to kick in, file within ten days after the day you found out about the violation. If the tenth day falls on a weekend or a federal holiday, file by the last business day within that period, that is, the Friday before a weekend or the day before a holiday. If you don’t care about the CICA stay, then you have until the following business day.
Elimination from the competitive range in a negotiated procurement
You have three days after the day on which the government notified you of your elimination to request a debrief and five days after the debrief to file a protest with the GAO, if you want the CICA stay. If you request a debrief, GAO will not accept your protest until after the debrief has been conducted. If the fifth day after the debrief falls on a weekend or federal holiday, you must file on the business day before the five days is up. Some federal procurement shops aren’t above playing hardball by scheduling a debrief before a three-day weekend.
Ensuring that GAO makes that call notifying the agency of your protest requires filing before noon on the fifth day at the absolute latest. It’s a best practice to file a day before the deadline.
If you’re not interested in the CICA stay, then the GAO will nonetheless accept your protest for a period of ten days after the day of the debrief. If the tenth day falls on a weekend or a federal holiday, you have until the following business day. If you didn’t request a debriefing (although you should have), then you have ten days after the day of your elimination to file. If you want the CICA stay in this scenario, file by the last business day within the ten-day period; if you don’t, feel free to wait until the next business day after, should the tenth day fall on a weekend or holiday.
Award in a negotiated procurement goes to another company
You have three days to request a debrief, and five days after the debrief to get an automatic suspension of the procurement. Again, if the fifth day falls on a weekend or holiday, then you must file the protest on the business day before the five days is up. If you’re unconcerned about getting the automatic stay, then you have ten days to file, with the allowance for weekends and holidays should the tenth day fall on one.
Award in a simplified acquisition goes to another company
Simplified acquisitions don’t require contracting officers to offer debriefs, just “brief explanations.” As a result, the time period to both protest and get a CICA stay is ten days from notification of the loss. If the tenth day falls on a weekend or holiday, the deadline is the first business day before the last day. Do not wait to file after the “brief explanation” if it becomes apparent that the agency is waiting for the ten-day protest period to pass, unless you’re absolutely sure that the “brief explanation” will give you new information for a protest (and it won’t).
GSA schedule order goes to another company
Establishing whether or not you have standing as an interested party to file a protest against a schedule contract order issued to another company can be a tricky affair. You’re on more solid ground if you definitely were an offeror in a schedule competition, in which case you have ten days after the award was made to file with the GAO to get the CICA stay. As with other CICA stay requests, the last day to file is on the last business day before a weekend or federal holiday in that ten-day period. If you don’t care about the CICA stay, should the tenth day fall on a weekend or holiday, you can wait until the next business day.
Multiple-award IDIQ order went to another company
If the task or delivery order was worth more than $10 million, then you have recourse to the GAO, and only to the GAO, for a protest on any valid grounds. Current law does not clearly state whether filing a protest regarding an award above $10 million triggers the CICA stay, and so far there hasn’t been a court case to resolve the matter. Agencies have voluntarily been applying a stay. Nor is the law entirely clear on when the filing deadline falls. The safest course is to assume you have ten calendar days (i.e., the last business day within a ten-day period) to file a protest, not to wait for the debriefing if it is scheduled to fall outside that ten-day period, and not to assume that you have five days after the debrief to file a protest if those five days extend beyond the initial ten calendar day period.
New evidence for protest grounds
If in the extremely rare event that you didn’t know and shouldn’t have known the basis for a protest within ten days after a contract award, including the fact that you didn’t know about the award itself, then you have ten days from the day you come to know about the protest grounds to file. In this case, should the tenth day fall on a weekend or a holiday, you have until the next business day. If you win this kind of protest, consider playing the lottery.
Protest Forum: Court of Federal Claims
The Court of Federal Claims has nationwide jurisdiction over federal procurement protest litigation. Whereas the GAO is quasi-judicial, the Court of Federal Claims (COFC), located in downtown Washington, D.C., really is judicial. But going to the court will be an expensive and potentially drawn-out affair.
A COFC suit about a prejudicial solicitation should probably be filed before the solicitation is due; Federal Court of Appeals precedent says you can’t participate in a competition and then afterward complain about the rules.19
For preaward or postaward protests, the court has an imprecise but nonetheless real timeliness requirement that can best be expressed as a distaste for dawdling. Once a fair portion of contracted-for work has been performed, a COFC protest probably becomes a moot option. “A plaintiff cannot sit on his rights while allowing the Government to move forward on a contract,” a judge stated in a March 2012 ruling.20
Simultaneous appeals to the GAO and the court are not possible; the GAO requires notification of a court proceeding and will dismiss a case subject to litigation.21
The court lacks the automatic CICA stay power of the GAO. It can issue a temporary restraining order or a preliminary injunction, but getting one practically requires immediately convincing a judge that your side will likely prevail. However, agencies often observe a voluntary slowdown or suspension of procurement activity while a case is before the court.
Court judges mostly restrict the basis for their rulings to evidence from an agency’s administrative record. Unlike a GAO protest, in which protestors must request documents, court judges instruct agencies on what to hand over. It’s unclear whether or not the entirety of a GAO protest record (assuming the protestor filed there first), including hearing transcripts and affidavits, is admissible into the court as part of the administrative record. Judges have a fair amount of latitude, so it might require a federal circuit decision to clarify the extent to which GAO records are admissible.
Because of all of the aforementioned factors, the court tends to be a second-choice protest forum. Companies go to it if they’ve missed the GAO deadline or after losing a GAO protest. But in some cases, there is no choice but to go to the court. Only it, and not the GAO, will hear a challenge to an agency’s override of the CICA suspension. Also, the court has protest jurisdiction over government entities that the GAO does not, such as the Postal Service.
Court rulings can have spectacular results, as with the court’s 2008 decision to toss out the GSA’s evaluation of proposals for its Alliant governmentwide acquisition contract. In a paint-blistering decision, the court asserted that GSA had attached “talismanic significance to technical calculations that suffer from false precision,” and forced the agency to reconsider the proposals.22
Decisions by the court are appealable to the Court of Appeals for the Federal Circuit and potentially to the Supreme Court.
Final Note
Periodically, a wave of complaints about protests will emerge from one quarter or another along with possible calls for changes to the system. These peter out with little effect, since the truth is that abuse of the protest process, while not unknown, is not common. In fact, a 2009 GAO study found that while annual upward and downward fluctuations occur, there has been a generally downward trend in protests filed during the first decade of this century compared to the 1990s.23
If you have cause to believe that your company has been denied, whether deliberately or inadvertently, its fair chance to compete for an opportunity, file a protest. That’s the reason the protest system exists. Just know that a frivolous protest will gain you little short-term advantage, and a reputation for filing protests will do damage in the long term.
ENDNOTES
1. FAR 15.505 and 15.506.
2. FAR 16.505(b)(4).
3. FAR 13.106-3(d).
4. FAR 8.405-2(d).
5. 4 CFR 21.9(a).
6. 31 USC 3551(2)(a).
7. 4 CFR 21.5(h).
8. U.S. Government Accountability Office. FitNet Purchasing Alliance. B-309911. November 2, 2007.
9. 4 CFR 21.2(a)(3).
10. FAR 16.505(a)(9)(ii).
11. FAR 16.505(a)(9)(i).
12. FAR 52.233-1 defines a Contract Disputes Act claim as a “written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.”
13. 4 CFR 21.5(b).
14. 4 CFR 21.5(b)(1); 13 CFR 121.1102.
15. 4 CFR 21.1(c).
16. 4 CFR 21.7(c).
17. FAR 33.104(b) and (c).
18. 4 CFR 21.2(a)(1).
19. Blue & Gold Fleet, L.P. v. United States and Hornblower Yachts, Inc. No. 2006-5064. Court of Appeals for the Federal Circuit. June 26, 2007. “We also hold that a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection subsequently in a bid protest action in the Court of Federal Claims.” However, some lawyers told us they can argue around the Blue & Gold Fleet decision.
20. Clinton Reilly v. The United States. No. 11-788C. United States Court of Federal Claims. March 28, 2012.
21. 4 CFR 21.11(b).
22. Serco Inc. v. The United States. No. 07-691C, et al. United States Court of Federal Claims. March 3, 2008.
23. U.S. Government Accountability Office. Report to Congress on Bid Protests Involving Defense Procurements. B-401197. April 9, 2009.