Pre-Award vs. Post-Award Protests: Key Insights

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Contractors often confuse pre-award protests with post-award protests, leading to missed opportunities and the potential loss of the right to challenge procurement decisions. This article clarifies these essential differences, highlights the timelines involved, and outlines common grounds for protests. 

Post-award protests occur after a contractor receives notice that their offer was unsuccessful or learns that another company has won the contract. Although many contractors are familiar with this process, awareness of pre-award protests is less common. These protests challenge the terms of a solicitation before bids are due, allowing contractors to address issues early. 

According to GAO regulations, protests regarding solicitation improprieties must be filed before the bid opening or the deadline for initial proposals. Waiting until after the award can result in the complete loss of the right to protest. Therefore, contractors must be vigilant in identifying and addressing issues that require early challenges.

1. Ambiguity in Solicitation Terms: If you notice vague or conflicting language in the solicitation, raise your concerns promptly. Take advantage of opportunities to ask the agency questions, ensuring you file your protest before submitting your bid.
2. Missing or Incorrect Provisions: If the solicitation omits required clauses or includes inappropriate ones, don’t wait to see if you win. Protests based on these grounds must be filed before your bid submission.
3. Unduly Restrictive Terms: If the solicitation unjustifiably limits competition, it’s protestable. Demonstrating that such restrictions are unnecessary may prompt the agency to revise its criteria.
4. Set-Aside and “Rule of Two” Issues: Challenges regarding the decision to set aside a procurement should be addressed early since these issues are apparent at the outset.
5. Improper Use of LPTA Procedures: If you suspect that Lowest Price Technically Acceptable (LPTA) procedures are being misapplied, file your protest before submitting a proposal.
6. Non-compliance with Small Business Regulations: If evaluation criteria conflict with applicable regulations—such as those impacting joint ventures—promptly protest these issues.

Contractors must recognize these potential issues to safeguard their rights. If you have questions or need guidance on navigating the complexities of pre-award and post-award protests, schedule a consultation with us early. Swift action is critical; waiting for the outcome of an award evaluation may leave you without recourse. Stay proactive to protect your interests and ensure compliance with pre-award deadlines.