Losing a procurement opportunity can be a painful experience, especially when company money has been spent chasing that opportunity. However, there are steps that can be taken to cope with the loss and potentially seek recourse through the protest process.

The first step after losing a procurement opportunity is to request a debrief. Companies competing in a negotiated procurement are entitled to a debrief, and it is important to request it within three days of receiving notification of the loss. If you are eliminated from the competitive range, you have the choice to request a debrief immediately or wait until after the award is made. It is important to note that if you wait, you may miss the deadline to file a protest with the Government Accountability Office (GAO).

A debrief can provide valuable feedback and information about why the award was given to another company. If you are considering filing a protest, it is recommended to request the debrief immediately. However, if you are more interested in comparing your proposal to the winning proposal and do not plan to file a protest, you can ask for the debrief to be postponed.

Competitors for multiple-award contract task or delivery orders worth more than $5 million are also entitled to a debrief, and they have three days to request it in writing. In the case of a competition among schedule holders, debriefs are usually not offered, but schedule holders responding to a schedule-based best value request for quotes for hourly-rate services are entitled to a “brief explanation” of their loss.

If there is reason to believe that the government was prejudiced against your company, there is recourse through the protest process. There are three main types of protests that can be filed: pre-bid protests, pre-award protests, and post-award protests. Pre-bid protests occur before contract award and are typically filed when there is a belief that some aspect of the solicitation itself is prejudicial to your company. Pre-award protests are filed during the negotiation stage of a procurement and often involve challenges to the exclusion from the competitive range or other aspects of the negotiation process. Post-award protests are filed after the contract has been awarded and typically challenge the final selection process.

The three forums for filing protests are the contracting agency itself, the GAO, and the Court of Federal Claims. Filing a protest with the GAO typically results in the agency suspending further execution of the procurement, whether the protest is filed before or after the contract award. The GAO has a reputation for being quick, with cases usually being resolved in 100 days or fewer. The GAO also has a thorough document disclosure process, but it is recommended to hire outside counsel to navigate this process.

The Court of Federal Claims is a second choice for filing a protest, as it can be more expensive and time-consuming. The court lacks the automatic stay power of the GAO and can only issue temporary restraining orders or preliminary injunctions. However, the court has nationwide jurisdiction over federal procurement protest litigation.

It is important to be aware of the deadlines for filing protests, as they vary depending on the circumstances. For example, if there is evidence of a violation of the Procurement Integrity Act, a protest must be filed within ten days of discovering the violation. If you have been eliminated from the competitive range in a negotiated procurement, a protest must be filed within five days of the debrief.

In conclusion, losing a procurement opportunity can be challenging, but there are steps that can be taken to cope with the loss and potentially seek recourse through the protest process. Requesting a debrief and understanding the different types of protests and their filing deadlines is crucial for those who believe they have been unfairly denied a fair chance to compete for an opportunity.

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