Who can intervene in a GAO protest?

A vendor raised the following issue: Our company participates in numerous government procurements. Sometimes one or more companies will file a bid protest at the General Accounting Office. Can we intervene in a protest that involves a procurement in which we participated? To what extent can a vendor participate in a protest filed by another offeror?

This is an important question for several reasons. Obviously the awardee of a contract has a significant interest in intervening in a protest in order to help protect the award. Furthermore it is often the case that a particular disappointed offeror does not want to be the first company to file a protest but does want to be involved if the award is protested by someone else.

Under GAO's bid-protest rules there is a fairly narrow definition of who may intervene in a protest filed by another party especially when the bid protest involves a challenge to a contract award decision. However there are several ways in which these rules may be enlarged under certain circumstances.

GAO's current bid-protest rules became effective Aug. 8 1996. They are found in part 21 of Title 4 of the Code of Federal Regulations (C.F.R.). These regulations define a person who may intervene in a protest as "an awardee if the award has been made or if no award has been made all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied." 4 C.F.R. § 21.0.Thus in a post-award bid protest only the contract awardee(s) may intervene as a matter of right in a protest challenging the award.

Interestingly there is no express time limit on intervening. A notice of intervention may be filed at any time. However the party should not expect to receive any extensions of time in the proceedings based upon a decision to intervene relatively late in the process.

Once a party has intervened it may participate in the protest in the same manner as the original parties. Accordingly the intervenor may take part in any hearing that is held and may submit written comments under the same rules as the other parties.

Of course it is entirely possible that more than one disappointed offeror may file a bid protest challenging the same award decision.

In some cases these separate protests will be consolidated for convenience. This is most likely to happen when the contracting agency believes that it is more efficient to produce a single protest file that addresses all the protests than to produce separate files. However in many cases the protests will be processed separately.

Because each protest must stand on its own each protester must separately satisfy the timeliness and interested-party requirements of GAO's rules. In most cases the timeliness rules are easy to apply. In general a bid protest must be filed within 10 calendar days of the date on which the basis of the protest is known or should have been known.

However GAO's current rules include a special exception to this rule. For "protests challenging a procurement conducted on the basis of competitive proposals under which a debriefing is requested and when requested is required " GAO's rules provide that "the initial protest shall not be filed before the debriefing date offered to the protester but shall be filed not later than 10 [calendar] days after the date on which the debriefing is held." 4 C.F.R. § 21.2(a)(2).

Thus in larger procurements in which the debriefings stretch over a period of time it would not be uncommon for a disappointed offeror to learn that another offeror had filed a protest while there is still time to file its own protest.

In addition to the timeliness rules each protester must satisfy the interested-party requirements of GAO's bid-protest rules. Under the rules an "interested party" is defined as "an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract." 4 C.F.R. § 21.0.

Although clear on its face this rule can be difficult to apply. If the solicitation calls for award to the lowest priced technically acceptable offeror the second-lowest offeror will be an interested party to argue that the lowest-priced offeror was not entitled to award. However if any higher-priced offeror wishes to protest it may be required to attack all offerors proposing lower prices. Otherwise the protester would be hard-pressed to demonstrate direct economic interest in the award.

In a best value procurement the issues are likely to be more complex.

Finally it should be noted that GAO's bid-protest rules specifically provide for the possibility that one does not have to be a protester or an intervenor to submit comments in a protest.

In an appropriate case a company may want to seek GAO's consent to submit such a statement even though it is not otherwise participating in the case.

Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C. This column addresses legal topics that arise in government acquisition and management of ADP resources. Readers are encouraged to submit topics by e-mail to carl@carl.com or by voice-mail to (703) 876-5151 extension 2965. Should you have a specific question or legal problem consult an attorney.

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