The Case for Intervention in Bid Protests

Bloomberg BNA Federal Contracts Report

Authored Article

Between November 12th and November 17th, 2015, the Government Accountability Office (GAO) issued publicly four bid protest decisions in which the protest was sustained. Interestingly, out of these four cases, none had an intervenor as a party. Although it is impossible to determine whether the outcome of any of these protests would have been different had an interveneor been involved, the cases nonetheless serve as a great opportunity to remind government contractors of their rights with respect to intervening in bid protests.

Why Don’t More Contractors Intervene In Bid Protests?

The top two (indeed, perhaps the only two) reasons that this author has heard regarding why a company did not intervene in a bid protest are: (1) the company did not know that it could intervene; and (2) the company did not want to incur legal fees in connection with intervening. As this article discusses, however, in the post-award bid protest context, contract awardees almost always have the right to intervene in the protest. And, in the pre-award bid protest context, bidders and offerors often times will be allowed to intervene in a bid protest. Moreover, although many contractors – understandably – are reluctant at first to intervene in bid protests due to the potential legal fees associated with intervention, for the (ten) reasons set forth below, the decision not to intervene frequently ends up being ‘‘penny wise and pound foolish.’’

This article first appeared in Bloomberg BNA Federal Contracts Report on December 29, 2015.