As a result of increased government spending at the end of the government's fiscal year — the 12-month period beginning on Oct. 1 and ending on Sept. 30 — the number of bid protest filings peaks in October. Accordingly, government contractors should be particularly mindful this time of year of their rights with respect to intervening in bid protests both at the U.S. Government Accountability Office and the U.S. Court of Federal Claims.
In this regard, this article provides a user-friendly refresher for government contractors on the process for intervening in bid protests and provides 10 reasons why government contractors should consider intervening in bid protests.
Who may intervene in bid protests?
GAO Bid Protests
The GAO's bid protest regulations provide the following definition of intervenor, in relevant part:
Intervenor means an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.
However, as the GAO notes, "permitting intervention in a preaward protest is generally the exception, not the rule."
U.S. Court of Federal Claims Bid Protests
The rules of the Court of Federal Claims allow for two types of intervention: (1) intervention as of right and (2) permissive intervention. With regard to intervention as a matter of right, COFC Rule 24(a)(2) requires a would-be intervenor to demonstrate via a timely motion that:
- Its interests relate to a property or transaction that is the subject of the proceedings; and
- Its interests are so situated that disposition of the action may impair or even impede its ability to protect that interest.
Pursuant to COFC Rule 24(b) — which governs permissive intervention — the Court of Federal Claims may allow anyone to intervene who:
- Files a timely motion;
- Is given an unconditional right to intervene by a federal statute or has a claim or defense that shares with the main action a common question of law or fact; and
- Whose intervention will not delay or prejudice the adjudication of the original parties' rights.
When determining whether a potential intervenor's motion is timely, the court considers:
- The length of delay in making the application for intervention;
- Whether the prejudice to the existing parties by allowing intervention outweighs the prejudice to the would-be intervenor by denying intervention; and
- The existence of unusual circumstances weighing either for or against intervention.
Importantly, the U.S. Court of Appeals for the Federal Circuit has held that the requirements for intervention are to be construed in favor of intervention.
Republished with permission. The full article for, "A Refresher For Gov't Contractors On Bid Protest Intervention," was published by Law360 on October 7, 2020.