ASCM 650 PROF. LAWRENCE JORDAN III, ESQ. THE PROTEST – WHAT CAN BE PROTESTED? •

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ASCM 650
Prof. Lawrence Jordan III, Esq.
The Protest – What Can Be Protested?
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The solicitation package (Request for Quotations, Request for
Proposals, Invitation for Bid); anything included in the
solicitation package.
The way the government evaluated offers and bids.
The way the government carried out discussions in a negotiated
procurement.
The government’s determination of responsibility of the winner.
Picking the winner.
Four Issues that Generally Get Protested
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The reasonableness of the decision
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Did the contracting officer use the stated evaluation factors?
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A contract award must follow the stated evaluation factors.
Did the contracting officer follow all the laws and regulations?
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A contract award must be reasonable.
The government has to follow procurement laws.
Did the contracting officer adequately document the decision?
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FAR 15.308 provides guidance on how a contracting officer should
document the award decision.
When Can Something be Protested?
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The rule for filing of a protest depends on what is being
protested. There are two choices: protest something in the
solicitation package and a protest of everything else.
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The solicitation package: If a protester does not like something in the
solicitation package, he must protest prior to the time that the offers or
bids are to be received.
Everything else: If a protest doesn’t deal with the solicitation package,
then it is a protest of “everything else.” The protest must be filed within
10 days of when the protestor knew, or should have known, of the
basis for protest, with an exception for protests that challenge a
procurement conducted on the basis of competitive proposals under
which a debriefing is requested and, when requested is required.
How is Something Protested?
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GAO Protests
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Protests can be filed by fax, e-mail, or via U.S. Mail
The protest must include the name, street address, electronic mail address,
telephone and fax number of the protestor.
It must be signed by the protestor or its representative.
Must identify the contracting agency and the solicitation and or contract
number.
Must set forth a detailed statement of the legal and factual grounds of
protest including copies of relevant documents.
Must set forth all information establishing that the protestor is an
interested party.
Must set forth all the information establishing the timeliness of the protest.
Must specifically request a ruling by the Comptroller General of the U.S.;
and Must state the form of relief requested.
CFC Protests
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Cost more money and requires a complaint to be filed (typically by an
attorney)
The Claim Process
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A claim is a written demand or assertion by one of the
contracting parties seeking, as a matter of right, the payment of
money in a sum certain, the adjustment or interpretation of
contract terms, or other relief arising under or relating to a
contract.
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Claims for Money
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Contractor must demand a specific dollar amount from the government.
Contractor must demand a final decision of the contracting officer.
Contracting officer must state the basis of the claim.
Claims for Interpretation of Contract terms.
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Anytime the contractor says the contract means one thing and the

government says it means another, there is the possibility of a claim over
contract interpretation.
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Claims for other relief
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This is a catch-all
Typically, it is a claim involving a termination or default.
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Examples include:
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When the contractor asks the government to reconsider its termination because
there was an excusable delay such as the government’s slowing the project down.
Asking the government to reduce or eliminate the assessment of liquated damages
This type of claim can be made by sending the government a letter
describing what happened to the contractor and why the contractor wants
relief.
Contracting Officers Final Decision
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The contracting officer must prepare a written decision that
include the following:
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Description of the claim or dispute.
Reference to the pertinent contract terms.
Statement of the factual areas of agreement and disagreement; and
Statement of the contracting officer’s decision, with supporting rationale.
When Must a Claim be Filed?
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Claims have two statute of limitations or deadlines
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Statute of limitations for filing claims with the contracting officer
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A deadline to file claims with the contracting officer; and
A deadline to appeal a contracting officer’s decision to the appropriate
BCA or the CFC
A claim by a contractor has to be filed within 6 years after the accrual of
the claim (date that the contractor knew of should have known of a
potential claim against the government)
Statute of limitations for Appealing a contracting officer’s final
decision
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A contracting officer’s final decision may be appealed to the BCA within
90 days of receipt by the contractor or to the CFC within 1 year of
receipt.
Costs of Litigation
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Equal Access to Justice Act (EAJA)
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An eligible party who is a prevailing party in a lawsuit against the
government must recover attorneys’ fees not to exceed $125 an hour
unless the government has a legal position that is substantially justified.
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Prevailing party: The winning party must prove that it was a “prevailing
party.”
Eligible party: To be an eligible party, must fall in to one of the following
categories:
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Individual whose net worth did not exceed 2 mil at the time the civil action was
filed
Any owner of an unincorporated business, partnership, corporation association

with a net worth that does not exceed 7 mil at the time the civil action was
filed, and which had not more than 500 employees at the time the civil action
was filed.
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Substantially justified:
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The government’s position must have a reasonable basis both in law and in fact.
EAJA makes the government pay if its litigation position on the facts and the law
is not substantially justified.

ASCM 650 PROF. LAWRENCE JORDAN III, ESQ. THE PROTEST – WHAT CAN BE PROTESTED? •

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ASCM 650 PROF. LAWRENCE JORDAN III, ESQ. THE PROTEST – WHAT CAN BE PROTESTED? •