We previously discussed how the work of the Trump administration’s Department of Government Efficiency (DOGE) is making the decision to protest more critical than ever for offerors, particularly as the end of fiscal year rush to award contracts begins to play out. For awardees, the decision to intervene is just as critically important.

Every contract won is becoming more valuable in relation to what, for many contractors impacted by the DOGE effect, is a waning universe of contracting opportunities. By intervening, awardees can protect their hard-fought procurement victories from getting overturned as a result of the bid protest process. That is why the winning contractor should always consider intervening in a bid protest of their award.

Defend the Award

The primary reason why an awardee should intervene in a bid protest is to have the opportunity to defend the rationality and legality of their award. An awardee’s interests will not always align with that of the government, particularly when it comes to whether corrective action should be taken. Getting external counsel to intervene and become admitted under the protective order early in the protest process can allow them to have candid conversations with the government’s representatives about what the agency intends to do in response to the protest.

Many times, these conversations can give intervenor counsel the opportunity to persuade the agency not to hit the easy button by taking immediate voluntary corrective action but rather defend the award before the Government Accountability Office (GAO) or the Court of Federal Claims (COFC). These early conversations also can give intervenor counsel the opportunity to offer the government help with formulating arguments for getting protest grounds dismissed and denied, and for withholding irrelevant documents from production. Short-staffed agency counsel often welcome these offers of help with open arms, giving them additional motivation to litigate.

But beyond assisting the government, intervention gives your external counsel the chance to advocate on your company’s behalf to uphold the award. Before GAO, awardees can submit comments on the agency report and, in some cases, supplemental comments that provide additional arguments and caselaw in support of the agency’s award decision. Likewise, at the COFC, awardees can file a motion or cross-motion for judgment on the administrative record, as well as a response in opposition and a reply, detailing the reasons why a protest should be denied.

In addition, intervention provides external counsel the opportunity to submit procedural filings, such as requests for dismissal at GAO and motions to dismiss at the court. These requests and motions can knock out protests entirely before the record is even produced. They can also result in partial dismissals, which narrow down the range of issues to be litigated on the merits.

Whether it is a procedural filing or a merits brief, the GAO attorney or judge will consider what an awardee in intervention has to say before rendering their decision. To adequately protect your rights as the awardee, you should engage counsel with experience intervening in bid protests as soon as you receive a stop-work notice pending protest from the agency.

Protect Your Proprietary Information

Another reason to intervene is to prevent your company’s proprietary information from being produced to your competitors. Because of the source selection sensitive nature of the documents contained in the procurement file, both GAO and the COFC limit who may have access to the agency report and administrative record, respectively. Only those who can affirm that they have no involvement in the competitive decision making process of the party they represent generally can get admitted under the protective order.

While this prevents access to protected information from being seen by those not admitted under the protective order, both GAO and the COFC have a process that allows the parties to prepare and file redacted versions of documents that can then be released to the general public. But only parties admitted under the protective order can participate fully in this process. If you do not have external counsel intervene on your behalf, then the redaction of proprietary information relating to your company’s winning proposal will be primarily at the mercy of agency counsel (whose interests may not always align with your company’s) and protester counsel (whose interests are certainly not aligned with your company’s). Awardees thus should take these steps to safeguard against the release of their proprietary information.      

Mitigate the Effects of Corrective Action

Finally, intervening in a bid protest can place your company in the best position possible to mitigate the effects of any corrective action taken. Intervenor counsel can propose limitations on the scope of corrective action, particularly if the perceived flaw the agency wants to address is simply to better document the reasoning of its original award decision. Alternatively, if corrective action is taken in response to a perceived flaw in the prior awardee’s proposal, intervenor counsel can propose to expand the scope of corrective action to permit proposal revisions so that the prior awardee can correct that issue prior to reevaluation.

Intervenor counsel can also propose that the agency level the playing field, including by requesting that other offerors’ adjectival ratings and total evaluated prices be disclosed as the prior awardee’s were during debriefings. Further, external counsel who are admitted under the protective order can obtain authorization to use protected information to file a subsequent protest of the corrective action itself. And they can seek the agreement of the parties to extend the period during which protected information must be returned or destroyed in case it is ever needed to protest a “flipped” award.

Conclusion

What the Trump administration decides to cut next remains largely unknown. But, for better or worse, DOGE appears here to stay. While Elon Musk may no longer be serving at its helm, DOGE now has employees staffed throughout the government, ready to initiate the next phase of cost-cutting measures. With each new contract terminated and procurement cancelled, the contracting opportunities that remain become that much more valuable to the pool of offerors competing for a piece of the government pie.

As a result, whereas before a procurement may have attracted a dozen or so competitors, now 30 or 40 are competing for an award. The consolidation of requirements under the General Services Administration’s governmentwide acquisition contracting vehicles (another one of the Trump administration’s procurement-related initiatives) has only exacerbated this trend, with hundreds of offerors competing at once for a spot on these long-term vehicles. The combination of increased competition per procurement, with fewer revenue-generating contracting opportunities to compete for overall, means that the upcoming end-of-fiscal-year could see a lot of protests filed in the wake of the DOGE effect. Contractors should expect to have their awards protested and start planning now to intervene once they receive a stop-work order from their contracting officer.

Miles & Stockbridge’s government contracts lawyers will continue to monitor the impact of the DOGE effect on bid protests and other components of government contracting, and are available to assist and answer any questions about the bid protest process.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.