Government Contract Attorney Lawyers Bid Protest Claims Disputes Changes REA Terminations Delays: Government Contract Attorneys Lawyers Protests Claims Protests Disputes

STANDING – RIGHT TO PROTEST

By statute, a GAO bid protest may be filed by any “interested party,” or any “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.”

Prior to the award, contractors who are considering bidding or offering generally qualify as interested parties.  After an award, however, only contractors who bid on the contract or submitted offers qualify as interested parties because only they were eligible for the award.

In addition to prospective or actual bidders or offerors, other parties to GAO bid protests include the agency conducting the challenged procurement and, potentially, one or more intervenors. Intervenors enter protests to protect their status as awardees or potential awardees under the protested contract. When the contract has not yet been awarded, GAO permits all bidders or offerors who “appear to have a substantial prospect of receiving an award if the protest is denied” to intervene   Similarly, when the contract has been awarded, GAO permits the winning bidder or offeror to intervene.

GAO Bid Protest Rule 21(a)(1) provides that only an interested party may protest a federal procurement. That is, a protester must be an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. Bid Protest Regulations.  A protester is not an interested party where it would not be in line for contract award were its protest to be sustained.  Technical Associates, Inc., B-406524 (June 15, 2012) [Protester is not an interested party to challenge the terms of a solicitation issued under the FSS program where the protester does not hold an FSS contract.]

GAO considers prejudice is an element of every viable protest, and it will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency's actions, that is, unless the protester demonstrates that, but for the agency's actions, it would have had a substantial chance of receiving award.

Even if deficiencies are found in the agency’s evaluation, a contractor does not have the right to file a protest if it cannot show that “but for the agency's actions, it would have had a substantial chance of receiving the award.”  Special Services, B-402613.2,B-402613.3 (July 21, 2010)

In summary, to have standing to file a GAO protest, the protestor must demonstrate that the Government’s evaluation was materially defective such that it would have had a substantial chance of making the competitive range or receiving contract award, as the case may be.

 

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