Monthly Archives: July 2017

If you are familiar with Government contracting, at some point you have probably encountered disappointment in losing an award when you thought you should have won. Or, maybe you read a Request for Proposals (RFP) with terms that just seemed unfair.

There are two basic categories of protests: Pre-award protests which must be filed before the close of the solicitation (or the opening of a bid) and Post-award protests which must be filed by an “interested party” within certain time limits depending on the type of bid requested and the forum selected. Note that an “interested party” is not necessarily what it sounds like. The Federal Acquisition Regulations define an interested party as “An Interested party for the purpose of filing a protest means an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or by the failure to award a contract.” This definition has been further narrowed by the Government Accountability Office (GAO) and the Courts as “the next in line.” In other words, if there is no chance you could be awarded a contract even with the protest issue resolved, you are not an interested party.

There are many other things to consider before filing a protest to include: WHEN to file (as mentioned above), WHERE to file (as there are advantages/disadvantages in filing at the Agency level, at GAO, or in the US Court of Federal Claims), HOW to file (format, redactions, requests for documents and a protective order, etc.), and, most importantly, WHAT arguments to make. In addition, if you are protesting the small business size or socioeconomic status of a business, those protests are filed with the Small Business Administration which has its own administrative rules.

If you need help with deciding whether or not to protest, we can help. Our staff of former Government contract lawyers have, collectively, hundreds of years’ worth of experience both prosecuting and defending protests and can provide invaluable advice on all aspects involved in making this crucial business decision.

F&A can provide timely advice to companies that are out-growing their small business size or larger firms who wish to sell part or all of their business, or who are looking to diversify by acquiring companies.  Our experience can aid you in reviewing potential target companies to buy or can help you market your business for sale.  Frequently, the divesting of part or all of a business involves the transfer of Government contracts to the buyer.  As former Government acquisition lawyers, we have been involved in the novation of hundreds of contracts resulting in superior expertise in the Government’s role in, and rules for, novating contracts to help ensure that this complicated process runs smoothly.

We can also help companies with “size” issues.  The mixed blessing of a small company outgrowing its size brings unique challenges.  We can provide advice on everything from challenging a NAICS code decision encouraging the Government to select a more favorable NAICS code, to helping you draft newly required documents that will be necessary as a “no longer small” business like a Small Business Subcontracting Plan.  We can also help with the creation of Joint Ventures (JVs) to take advantage of the Small Business Administration’s (SBA’s) new “all small” Mentor-Protégé Program which permits a large business Mentor to create a JV with its small business Protégé to pursue small business set-asides.  We can help draft those Mentor-Protégé and JV Agreements to ensure the SBA’s requirements are met.

Our informed and responsive attention to your questions on all issues related to Government contracting is not only our most important priority, it’s our ONLY priority.