Bid Protest Definition & Meaning

Protest definition: According to GAO, A bid protest is a challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.

Protests may be filed against procurement actions by federal government agencies. A bid protest occurs when the federal government makes a contract award but an interested party, usually the unsuccessful award decides to challenge the award.

Within the bid protest definition, an interested party may choose to file a pre-award protest (challenging the terms and conditions of the solicitation) or they can file a post-award bid protest (challenging the contracting agency’s evaluation and award decision. See also 31 USC 1558.

Who Can File a Bid Protest?

Under the rules, only an interested party can file a bid protest. An interested party is in upcoming protests defined as a party with an economic interest (either as an actual or prospective bidder), that had a substantial chance of winning the contract and that is prejudiced by the agency’s award decision.

Under the legal definition of a protest, the rules do not allow recourse for subcontractors or someone who waits until after the contract award but has been already been excluded from the competitive range.

Where Can You File a Bid Protest?

When your company decides to file a bid protest, there are three choices. You can file an agency-level protest. You can file a GAO protest or you can file a bid protest at the US Court of Federal Claims.

Calculation of Filing Deadlines. 

“Days,” under GAO’s regulations, means “calendar days.” In the event a deadline falls on a weekend, a federal holiday, or another day when GAO is closed, the deadline is extended to the next business day.

FAR 33.102 — General.

(a) Without regard to the protest venue, contracting officers shall consider all protests and seek legal advice, whether protests are submitted before or after award and whether filed directly with the agency or the Government Accountability Office (GAO), or the U.S. Court of Federal Claims. (See 19.302 for protests of small business status, 19.305 for protests of disadvantaged business status, 19.306 for protests of HUBZone small business status, and 19.307 for protests of service-disabled veteran-owned small business status and 19.308 for protests of the status of an economically disadvantaged women-owned small business concern or of a women-owned small business concern eligible under the Women-Owned Small Business Program.)

(b) If, in connection with a protest, the head of an agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the agency may —

(1) Take any action that could have been recommended by the Comptroller General had the protest been filed with the Government Accountability Office;

(2) Pay appropriate costs as stated in 33.104(h); and

(3) Require the awardee to reimburse the Government’s costs, as provided in this paragraph, where a postaward protest is sustained as the result of an awardee’s intentional or negligent misstatement, misrepresentation, or miscertification. In addition to any other remedy available, and pursuant to the requirements of Subpart 32.6, the Government may collect this debt by offsetting the amount against any payment due the awardee under any contract between the awardee and the Government.

(i) When a protest is sustained by GAO under circumstances that may allow the Government to seek reimbursement for protest costs, the contracting officer will determine whether the protest was sustained based on the awardee’s negligent or intentional misrepresentation. If the protest was sustained on several issues, protest costs shall be apportioned according to the costs attributable to the awardee’s actions.

(ii) The contracting officer shall review the amount of the debt, degree of the awardee’s fault, and costs of collection, to determine whether a demand for reimbursement ought to be made. If it is in the best interests of the Government to seek reimbursement, the contracting officer shall notify the contractor in writing of the nature and amount of the debt, and the intention to collect by offset if necessary. Prior to issuing a final decision, the contracting officer shall afford the contractor an opportunity to inspect and copy agency records pertaining to the debt to the extent permitted by statute and regulation, and to request review of the matter by the head of the contracting activity.

(iii) When appropriate, the contracting officer shall also refer the matter to the agency debarment official for consideration under Subpart 9.4.

(c) In accordance with 31 USC 1558, with respect to any protest filed with the GAO, if the funds available to the agency for a contract at the time a protest is filed in connection with a solicitation for, proposed award of, or award of such a contract would otherwise expire, such funds shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such appeal or request, whichever is later.

Bid Protest Definition and Meaning of Intervening

When the government contracting agency makes an award, and the unsuccessful bidder has filed a bid protest, the successful awardee may intervene into the case. The GAO bid protest regulations allow the intervenor to assert its own rights, legal arguments and file briefs to either the GAO or Court of Federal Claims.

If the Court of Federal Claims rules on a bid protest, the case can be appealed to the US Court of Appeals for the Federal Circuit. At the bid protest appeal level, an intervenor is also allowed to participate.

Learn More About Critical Bid Protest Topics

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