FEDERAL BUSINESS
With the current opportunities presented by federal stimulus funding, more companies will be looking at doing business with the federal government. The entry into this arena can appear complex and is certainly not a "cake walk." However, the vast opportunities and regulated path make it worth the effort. The procurement activities of most federal government agencies are governed by the Federal Acquisition Regulation (FAR). Most federal agencies have their own supplement to FAR. For example, the Department of Defense's supplement is the DFARS. FAR is a trusted guide for those familiar with its contents and use. Also, various parts of the FAR explain how to challenge and seek remedies when the federal government procurement goes awry for the bidder and/or the offeror.
GAO
One of the many remedies available to a business responding to a federal government solicitation is the GAO Protest. Unlike Texas state, county, city, and municipal government procurement, the U.S. Government long ago established an administrative forum for challenging the procurement practices of its many agencies. This agency is called the General Accountability Office (GAO). The head of the GAO is the Comptroller General of the United States. For over 80 years, the GAO has provided an impartial forum for the resolution of federal government procurement issues. The written decisions of the Comptroller General on GAO Protests have established a uniform body of law upon which the public, Congress, courts, and federal agencies rely. The legal issues addressed in this body of law are voluminous and establish precedent for addressing most procurement mistakes made by federal agencies. Unlike the Courts, the GAO resolves Protests quickly and economically for small to medium companies when the target procurement does not justify the expense of court actions which often involve extensive discovery and lengthy evidentiary hearings or trials.
The GAO is a sophisticated forum with very knowledgeable and experienced counsel writing its Comptroller General decisions. A GAO Protest can be lodged by mail, email, or facsimile. For the past ten years, the GAO has agreed with the Protester and granted relief in approximately 10% to 20% of the cases. With the current emphasis on procurement competition and integrity, it is the writer's belief that the GAO's forum will be used more frequently. The GAO has very tight deadlines to analyze and write decisions on disputes, with 100 days from filing being their goal in normal cases and shorter deadlines applying for cases that are assigned to the express option procedures. While a GAO Protest may be filed by a non-lawyer, the GAO and federal agency will not release sensitive government records showing the basis for their procurement actions to a non-attorney. However, when a Protester is represented by counsel, the GAO has a Protective Order procedure that allows a party's counsel to see such information. This approach is similar to the "For Attorneys' Eyes Only" procedure used by Courts.
With the enactment of the Competition in Contracting Act in 1984, the GAO promulgated its own regulations to implement this Act. They were subsequently revised in 2008 to conform to the Department of Homeland Security Appropriations Act and the National Defense Authorization Act. With these Acts, the GAO's jurisdiction was expanded to hear protests of Transportation Security Administration procurements and the proposed issuance of some task and delivery orders under indefinite delivery and/or indefinite quantity contracts.
Whether you win or lose your protest, you will learn more about the federal government process and if you win, the Comptroller General has the discretion to award the Protester his/her attorney fees and bid preparation costs in some circumstances.
TIMELINE
Like the short times for the GAO to make a decision, the times for filing a GAO Protest are short. The deadlines are usually ten days from the act of the government that violates the FAR or a provision in the solicitation. Therefore, if you are getting involved with federal government procurement for the first time, from the date the federal agency issues a solicitation, the deadlines begin to run. One of your last opportunities to challenge the government is when they send you notice of their proposed award. If you are not the successful offeror, you have ten days from this notice to file your Protest. Many federal agencies provide for an Agency Protest procedure, and this may extend your GAO deadlines for a short period.
KEY
Get guidance from the beginning to help you recognize any issues in the procurement documents and/or in the acts of the procurement officials that merit challenge to ensure you get a fair chance at winning federal government business on a level playing field.
If you have any questions about this e-Alert, contact Gerry Lozano at
210.978.7741 or glozano@jw.com.
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