Although I never developed an avid interest in professional wrestling (I was a periodic consumer in middle school when it was still called WWF), I nonetheless have a distinct match preference: I prefer the tag team over the individual match.
Perhaps it’s because here are always more shenanigans in the tag team event. (While the ref is somehow distracted, the tagged-out partner always lands a cheap shot on the opposing tagged-in partner.) Or maybe it’s just because the theater is better with four competitors instead of two. But the explanation might be even more simple: if I ever fell into the ring, I’d want a teammate watching my back (and helping to inflict a greater dose of fictional pain on our opponents).
You may not be ready to don the spandex, grab a partner-in-crime, and sign up from the next WrestleMania; but you might be interested in the teaming up with the Government to defend an award against a bid protest. If that’s more your style, let’s talk about some intervention SmackDown.
Intervening in a bid protest
In many government procurements, disappointed offerors can file a bid protest with either the Government Accountability Office (GAO) or the Court of Federal Claims. There, the protester alleges that the Government fouled something up: unreasonably evaluated proposals, strayed from the solicitation’s terms, didn’t use a even hand, etc. In every case, however, the protester seeks to unwind the award.
That’s where an intervenor can come running into the ring as the Government’s tag team partner to defend the award. Like a muscle-bound beast, the intervenor enters the protest (or ring, if you will), pounds its chest, and in its most Macho Man-like voice thunders. Put another way, the intervenor becomes a bona fide protest party to help the Government defend the award.
Typically, an offeror can only intervene in a bid protest if it is the apparent or actual awardee. But intervention is also possible where the Government hasn’t made an award and the offeror appears to have a substantial prospect of receiving the award, if the protest is denied. For example, an offeror can intervene where it is the only other offeror or where the procuring agency establishes a competitive range of only one (excluding the protester).
Put simply, an offeror can intervene in a bid protest if a favorable decision will likely make it the eventual awardee.
Why intervene?
Intervention is not mandatory because a protester’s case is technically against the Government. Even so, intervention has several benefits:
- It may give the agency a confidence boost. In other words, the agency may mount a more tenacious defense knowing it has a friend in its corner.
- The intervenor’s counsel can access to the complete agency report–the bundle of documents relevant to the protest.
- The intervenor can raise arguments–whether procedural or substantive–that the Government may have missed.
- The intervenor can reinforce the Government’s best arguments with additional facts, case law, or reasoning.
- Intervention helps maximize the likelihood that GAO (or the Court) will deny the protest.
Intervention mechanics
Intervening in a bid protest is an easy process. For example, at GAO, the would-be intervenor simply files a letter explaining why it qualifies as an intervenor. GAO typically approves (or denies) the request within a day or even a few hours.
Once approved, the intervenor becomes a full-fledged party, complete with a wrestling leotard. Typically, the intervenor’s biggest chance to make a difference comes at the comments stage (30 days after the protest is filed). There, the intervenor (through counsel) reviews the procurement and throws foot-stomping blows at the protester’s arguments. With any luck, it can land a double piledriver (hand-in-hand with the Government) that knocks out the protest completely.
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Government contract awards are hard won. So, don’t shy away from defending that award. In fact, strap on some elbow pads and wait for that iconic opening: LET’S. . . GET. . . READY . . . TO . . . RUMMMMBBBBLLLLE!