Bid Protest Lawyers
When the government is seeking a contractor or business to meet certain particularized needs and requirements for goods or services, prospective offerors must typically engage in a bid process. However, while bids and the award of a government contract may proceed smoothly and without issue in the majority of instances, there is always the possibility of a situation where an offeror may feel that the process was flawed, it resulted in an improper award, or there was some fundamental problem or inequity that influenced the process.
Prospective Offerors Must be Prepared to Engage in Cost Realism Analysis or Risk Increased Exposure to Bid Protests
After receipt of a prospective bid for a government contract, the government must first perform a “cost realism” analysis on the bid. The main thrust of the cost realism analysis is to determine whether the potential awardee would be able to perform the contract at the proposed price. Aside from considerations about whether the offered price is too high, the cost realism analysis should also attempt to determine whether the price offered is too low making the company unlikely to be able to perform the contract as negotiated. Offerors who are not aware of all aspects of the cost reasonableness may submit a bid that is either too high or too low and cannot be accepted.
Consider the matter of Alcazar Trades, Inc. et al. where a bid protestor challenged the General Services Administration’s (GSA) award of a custodial services contract because the contract was not awarded to one of the lower-price offerors. Here, the differences between the awardee and the bid protestor’s offer was approximately $2.5 million. While the bid protest was sustained in this matter, it is important to note that the lowest bid will not necessarily end up being the awardee. What saved the awardee in the matter was that the $7.6 million offer was no longer considered to be too low at protest because GSA had merely compared the offers to the government estimate and the other offers. The GSA had not compared each offeror’s proposed price to its own particular technical approach. It is essential to understand that offers should not be compared mechanically.
Along the same lines of a comprehensive cost analysis, even an offer for a line-item price of $0.00 is not fatally flawed as being unrealistically low. In fact, in B&B Medical Services, Inc. a bid protest was filed alleging that the awardee’s line-item price of $0.00 to rent a certain system failed for cost reasonableness and that the offer was illusory. However this protest was not sustained. Rather, the Government Accounting Office (GAO) found that this offer was not illusory and instead reflected a commitment to provide the system to the government at no-charge. Furthermore, the fact that this contract was a fixed-price contract rather than a less-determinate sot reimbursement contract permitted the $0.00 offer to survive scrutiny. Our attorneys approach every matter meticulously and work to identify key differences and characteristics to improve the likelihood of a contract award or a sustained bid protest.
Companies Must Engage in the Process or Lose the Right to File a Bid Protest
Some businesses take something of a hands-off approach. That is, they will only seek guidance after a problem arises or the deal beings to fall apart. In matters of government contracts, such an approach puts a business or corporation at a significant disadvantage. Companies that fail to take a proactive approach in the bidding process may lose their right to challenge or protest later in the process. Consider the matter of Palladian Partners, Inc. v. U.S. In this matter a solicitation for bids was NAICS coded for a 500 employee standard. A prospective offeror appealed the coding resulting the contracting officer being ordered to notify all prospective offerors of the protest and their right to participate. None of those prospective offerors engaged in the appeal process. At the conclusion of this protest process a NCAIS code that would disqualify Paladin was selected and Paladin filed its own protest. However on appeal it was found that Paladin had failed to exhaust its administrative remedies by not engaging in the earlier appeal process. Because Paladin had not exhausted its administrative appeals it was not entitled to further protest and the court should not have considered the appeal. Thus, Paladin was unable to participate in the bid process due to its earlier failures to engage in the process.
Experienced Government Contracts Attorneys Handle Government Bid Protests
Companies and corporations that work to develop a strong and ongoing relationship with an attorney experienced in government contracts, the government bidding process, and bid protests can often outperform their peers. An experienced attorney can provide essential insights about the government contracting process bid protests. To schedule a confidential consultation regarding how the lawyers of Meredith & Narine may be able to assist your business or company contact us at (215) 995-2769 or contact us online.