IT’S VITAL TO KNOW THE ANSWER TO THIS ONE QUESTION BEFORE YOU PROTEST

The busy federal buying season also corresponds with an increase in acquisition-related protests.  Protests are a fact of life in government procurement and we believe that companies do themselves a great disservice if they adopt “no protest” policies.  Indeed, we are happy to have a deeper discussion on why outside of the newsletter.  Before a company protests, though, it is absolutely essential to know the answer to this question: “What do I want to happen?”.  This may seem obvious, but consider just the latest example of where it wasn’t.  It’s a safe bet that none of the small businesses that had invested hundreds of thousands of dollars in Alliant II SB wanted the procurement to be cancelled.  Staff time, proposal writers, business consultants, lawyers, etc. all were deployed with the expectation that there would be business through Alliant II SB.  Back in the dark ages we had the chance to sit in on oral arguments before the US Court of Appeals for the Federal Circuit, sometimes known as the “junior Supreme Court”, on the Best Power contract case.  The lawyer for Best was prepared for everything related to the contract.  He was not prepared for the question from one of the judges, “What is it that you want?”  The lawyer stammered.  There was an awkward silence.  Finally, the judge answered his own question, “Do you want attorney’s fees?”. A perceptible groan came from the gallery as the lawyer quietly affirmed that, yes, he would like fees.  Not one of the best moments from the annals of federal contract law and, unsurprisingly, the Court found a way to punt on the case.  The bottom line is that it is ok to protest when you have a legitimate reason to do so, but you need to answer the “What do I want?” question first.  Losing your investment in a huge IDIQ contract and ensuring that your lawyer gets paid probably aren’t at the top of the list.