Government Contract FAQs

A government contract bid protest is a formal challenge to a government procurement decision. Contractors may protest the terms of a solicitation, their exclusion from the competition, or the award of a contract to another company when they believe the agency violated procurement law or the terms of the solicitation. 

Federal bid protests can generally be filed in three places: with the procuring agency, with the Government Accountability Office (GAO), or at the U.S. Court of Federal Claims. Each forum has different procedures, timelines, and strategic advantages.  We help clients choose the forum that best fits their circumstances.  Click here to learn more about the GAO protest process.

Very quickly. Protest deadlines are strict and often measured in days, not weeks. 

Most GAO protests must be filed within 10 days of when you knew or should have known the basis for the protest, and challenges to solicitation terms generally must be filed before the proposal due date.  If your procurement is subject to a required debriefing, then the 10 day period is tied to the debriefing.  Filing within certain shorter windows after award or a required debriefing may also trigger an automatic stay of contract performance at the GAO.  If you think you have grounds for a protest, contact us immediately.  

If a debriefing is available, then in most cases, yes.  A debriefing gives you insight into how the agency evaluated your proposal and can reveal potential grounds for protest. Requesting a debriefing on time can also affect your protest deadlines, so it is important to understand the timing before you act.  Do not confuse a required debriefing with a "brief explanation of award" that is available for GSA Schedule orders.  They are very different things and have different impacts upon when you have to file a bid protest.

You can typically intervene in the protest to defend the award. Intervening lets you protect your interests and respond to the protester's arguments. Timely action is important here too.  Click here to learn more about why you should intervene to protect your award.

This is a common concern. Protests are a normal, legally protected part of the procurement process, and experienced contracting officials generally understand that.  We weigh the business relationship alongside the legal merits and help you decide whether protesting is in your long-term interest.  

Whether you need a lawyer to represent you in a bid protest depends upon the forum.  Whether you should have a lawyer represent you depends upon the nature of the protest.  First, a government contractor may represent itself for an agency or GAO protest.  Only a protest to the Court of Federal Claims requires that a contractor be represented by legal counsel.  Having a lawyer represent you at the agency, and especially the GAO, will likely enhance the likelihood of success.  Experienced BCTW lawyers will ensure you identify all the pertinent grounds of protest and seek to maximize the documents produced by the agency during a GAO protest.  To successfully pursue a GAO protest, a protective order is often needed for outside counsel to gain access to source selection sensitive information, such as your competitor's proposal and evaluation documents.  Because of the sensitive nature of these documents, they are not available for the protesting contractor to review, only its outside counsel.  Click here to learn more about why it is wise to use a BCTW government contract lawyer for your bid protest.    

BCTW  Law represents both prime contractors and subcontractors at every tier on federal government projects.  Our experience on both sides helps us anticipate the other party's arguments and find practical paths to resolution. 

Although a subcontract is a commercial agreement, it our field it relates to a government contract. That means the dispute may be shaped by federal regulations, flow-down clauses, government payment practices, and the outcome of the prime contractor's own dealings with the agency. Understanding how these layers interact is often the key to resolving the dispute efficiently. 

Subcontracts are usually governed by the state law chosen in the subcontract, but federal regulations and FAR clauses incorporated into the subcontract can affect how its terms are interpreted and the rights/obligations of the parties.  Where the subcontract is silent or ambiguous, courts may look to both state law and federal procurement principles.  A careful review of the subcontract is the first step in any dispute. 

Frequent issues include nonpayment or late payment, workshare disagreements, disputed change orders and scope, delays and schedule impacts, terminations, defective work claims, and disputes over how government actions should be passed down the contracting chain. 

Your options depend on the subcontract terms, the type of project, and whether a payment bond is in place.  Possible remedies include a claim under a Miller Act or state payment bond, a breach of contract action, prompt payment interest, or alternative dispute resolution. Some remedies have strict notice and filing deadlines, so it is important to act early.  Whether you have the contractual right to stop working until you are paid is also a thorny issue that will depend upon the terms of your subcontract.  It would be wise to consult with an experienced BCTW lawyer before taking any action that could create unnecessary and avoidable liability for you.

It depends on the exact wording and the governing state law. "Pay-when-paid" clauses are often interpreted as setting the timing of payment, while "pay-if-paid" clauses attempt to shift the risk of government nonpayment to the subcontractor. Many courts construe these clauses narrowly, and some states limit or prohibit pay-if-paid provisions. They also generally do not defeat Miller Act bond rights. 

Generally, no.  Because subcontractors are not in privity of contract with the government, they usually cannot bring claims directly against the agency under the Contract Disputes Act.  Instead, a subcontractor's claim based on government action typically must be brought through the prime contractor.   A pass-through claim is a claim that a prime contractor submits to the government on behalf of a subcontractor for costs caused by the government, such as changes, delays, or defective specifications.  The prime must generally remain liable to the subcontractor for those costs, at least conditionally, for the claim to proceed.  We help both primes and subcontractors structure these sponsored claims correctly. 

We represent buyers and sellers in transactions involving companies that hold government contracts, including private equity acquisitions, strategic mergers, asset purchases, and joint ventures.  We act as lead counsel or work alongside corporate deal counsel, focusing on the government contracts issues that can affect a deal's value, timing, and success. 

Government contracts cannot be freely transferred, and a company's eligibility for set-aside awards, security clearances, and certain contracts can change the moment ownership changes.  In fact, simply signing an LOI can impact a contractor's right to bid on or hold government contracts under the SBA's “present effect rule.”  Buyers also inherit, or may be exposed to, compliance risks such as False Claims Act liability, cost accounting issues, and cybersecurity obligations. Counsel experienced in government contracts can identify these issues early, reflect them in deal terms, and manage the required government approvals and notices.  

Not freely. The federal Anti-Assignment Act generally prohibits the transfer of a government contract to another party without the government's consent. When a contract must move from one legal entity to another, such as in an asset purchase, the government typically must approve the transfer through a novation agreement. 

A novation agreement is a three-party agreement among the transferor (seller), the transferee (buyer), and the government in which the government recognizes the transferee as the successor to the contracts.  Under a standard novation agreement, the transferor usually guarantees the transferee's performance and waives certain claims against the government. The government is not required to approve a novation and will consider whether the transfer is in its interest. 

Key areas include the target's contract portfolio and set-aside dependence, pending and potential claims and protests, compliance history, internal investigations and disclosures, audit status and rates, cost accounting practices, cybersecurity compliance, suspension and debarment history, organizational conflicts of interest, and past performance ratings. Diligence should focus not only on current revenue but on the target's ability to keep competing for future work after closing. 

Combining two businesses can create organizational conflicts of interest if, for example, one company evaluates or advises on work that the other performs. OCIs can disqualify the combined company from certain contracts or require mitigation plans. Buyers should identify potential OCIs before closing and plan how to manage them. 

Agencies may consider the past performance of a predecessor or affiliate when the relevant resources, such as personnel, facilities, and management, will actually be involved in the new work.  How past performance carries over after a transaction can affect the combined company's competitiveness and should be considered in integration planning. 

Purchase agreements for government contractors typically include specific representations and warranties about contract compliance, size and status, security clearances, audits, and investigations.  They may also include special indemnities for known issues, escrows or holdbacks, closing conditions tied to government approvals, and covenants addressing interim operations and novation.  We help tailor these provisions to the specific risks identified during due diligence. 

Post-closing tasks commonly include submitting novation or change-of-name requests, recertifying size and socioeconomic status, updating registrations in the System for Award Management (SAM), addressing any CAGE code changes, notifying contracting officers, reporting changed conditions for facility clearances, updating export registrations, and reviewing representations and certifications. Missing these obligations can create compliance problems and payment delays.