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Government Contracts: Timing for Challenges to Solicitation Procedures

Challenges to Solicitation Procedures, Such as Amendments to Solicitations, Must Be Made Before Contracts are Awarded

 The Court of Appeals for the Federal Circuit confirmed that, where a protest is based upon a defect in the bid solicitation process, the protest must be made before the bid is awarded.

In the case of Comint Systems Corp., et all v. United States, et al, decided on December 7, 2012, the Court examined Comint’s challenge of bid procedure after their bid was rejected by the Department of Defense.  On August 2, 2010, the DOD issued a solicitation for ID/IQ offers concerning information technology services.  By September 13, 2010, fourteen companies, including Comint, submitted proposals.  The DOD then issued an amendment to solicitation on January 19, 2011, which stated that they would not be accepting revisions to the proposals submitted by the fourteen different companies in September of 2010.  On January 20, the day after the amendment was announced, Comint signed the amendment.  After the DOD awarded contracts to three other companies on April 6, 2011, Comint submitted a bid protest.

Comint’s protest argued that the amendment fundamentally changed the solicitation and therefore the DOD should have allowed them to revise their bid.  The Court stated that Comint did not have standing and could not protest the DOD’s refusal to award them a contract because they had waited too long to protest the solicitation procedure; to be able to protest, Comint would had to have raised objections to the procedure when the amendment was announced.  Instead, Comint signed the amendment and did not protest until four months later when they were not awarded a contract.

This decision makes clear that if you have a problem with the process by which a government agency is soliciting bids, you must challenge that process before the bids are awarded.  If you wait until after the bid is awarded, you forfeit your ability to protest the bid based on the procedure by which it is granted.

If you challenge the procedure and the challenge is denied, you can still raise the issue of procedure in your bid protest should your company not be awarded a contract by the soliciting agency.  By challenging the procedure before the contracts are awarded, you preserve the issue for the protest, meaning that you never really acquiesced to the procedure or changes in the first place, so you can ask the court to review them in your bid protest.

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