WHY WINNING CONTRACTORS SHOULD INTERVENE IN PROTESTS
Anyone reading contract protest decisions (hey, it’s not a bad habit) knows that three sets of attorneys are frequently listed representing different interests. The protestor and the involved government agency are obvious parties to any protest. So, too, though, are companies that won the original award and want to ensure their interests are considered during protest consideration. This point was driven home recently by the Court of Federal Claims that provided two big reasons, in writing, for why intervening is in the original winner’s best interest. First, winners want to protect their award and “get paid for work.” The Court pointed out that this legitimate interest ultimately differs from the government’s protest goal, which is most often to defend its acquisition process. Second, this difference may cause the government to concede points the winning contractor would not, while perhaps providing concessions that could cause a recompete of the project. This would jeopardize the winner’s award status and force them to incur additional expenses to bid again for something they already thought was theirs. While representation during a protest involves its own cost incurrence, such an investment is often money well spent. A GAO bid protest, for example, may cost an awardee far less than a recompete. Intervenors should also not be as concerned as the protestor may be about engaging legal representation. While we believe that concerns over filing legitimate protests are unfounded, the reality is that many companies don’t want to file a protest out of concern that doing so will upset the customer. Intervenors, however, aren’t holding up the procurement process by being involved, but merely ensuring that their interests are fully represented in a protest action that has already been filed. Intervening in a protest to protect your initial award is an established best practice. You don’t have to listen to us, but you should listen to the Claims Court.