Aron C. Beezley | Buildsmart
As a result of increased government spending at the end of the government’s fiscal year — which is the 12-month period beginning on October 1 and ending on September 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 Government Accountability Office (GAO) and the U.S. Court of Federal Claims (COFC).
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” (4 C.F.R. § 21.0(b)(1)).
U.S. Court of Federal Claims Bid Protests
The rules of the COFC allow for two types of intervention: (1) intervention as of right and (2) permissive intervention. With respect to intervention as a matter of right, COFC Rule 24(a)(2) requires a would-be intervenor to demonstrate, via a “timely motion,” that (1) its interests relate to a property or transaction that is the subject of the proceedings, and (2) its interests are so situated that disposition of the action may impair or even impede its ability to protect that interest.
Pursuant to Rule 24(b) — which governs permissive intervention — the COFC may allow anyone to intervene who (1) files a timely motion; (2) 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 (3) 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 COFC considers (1) the length of delay in making the application for intervention; (2) whether the prejudice to the existing parties by allowing intervention outweighs the prejudice to the would-be intervenor by denying intervention; and (3) the existence of “unusual circumstances” weighing either for or against intervention (see Belton Indus., Inc. v. United States).
Notably, 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” (see Am. Mar. Trans., Inc. v. United States).
How Do You Intervene in a Bid Protest?
GAO Bid Protests
The GAO’s Bid Protest Regulations require the contracting agency to “immediately” provide a potential intervenor with notice of the protest. Specifically, the regulations state, in pertinent part:
GAO shall notify the agency by telephone within 1 day after the filing of a protest, and, unless the protest is dismissed under this part, shall promptly send a written confirmation to the agency and an acknowledgment to the protester. The agency shall immediately give notice of the protest to the contractor if award has been made or, if no award has been made, to all bidders or offerors who appear to have a substantial prospect of receiving an award. The agency shall furnish copies of the protest submissions to those parties, except where disclosure of the information is prohibited by law, with instructions to communicate further directly with GAO… (4 C.F.R. § 21.3(a))
The next step in the process is for the potential intervenor to promptly file with the GAO a “notice of intervention.” The notice typically is a brief letter that includes the name, address, and telephone and fax numbers of the intervenor or its representative, if any, and advises the GAO and all other parties of the intervenor’s status.
U.S. Court of Federal Claims Bid Protests
A party seeking to intervene in a COFC bid protest must file with the COFC — and serve on all parties — a motion to intervene (see RCFC 24(c)). The motion must “state the grounds for the intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Before filing the motion to intervene, it is generally prudent to ask the other parties to the protest whether they oppose the motion and then to state in the motion whether the parties oppose the motion.