One of the most powerful but often misunderstood tools available to government contractors is the pre-award protest. Unlike post-award protests, which generally challenge the outcome of a procurement, pre-award protests generally focus on the terms of the solicitation itself and/or the ground rules of the competition. When used strategically, a pre-award protest can help level the playing field and ensure that an agency’s solicitation is fair, lawful, rational, and does not unduly restrict competition.

Below, we explore what pre-award bid protests are, when to file them, and practical tips for contractors considering this important legal remedy.

What Is a Pre-Award Bid Protest?

A pre-award protest is a legal challenge filed before the government makes a contract award. These protests typically contest:

• Restrictive, defective or ambiguous solicitation terms
• Improper evaluation criteria
• Unreasonable past performance requirements
• Organizational conflicts of interest (OCI)
• Failure to include mandatory clauses or procedures

Pre-award protests are most often filed with the Government Accountability Office (GAO), the U.S. Court of Federal Claims, or the procuring agency itself.

Timing Is Critical

The deadline to file a pre-award protest is usually before the closing date for receipt of proposals. At the GAO, protests based on patent improprieties in a solicitation must be filed prior to bid opening or the closing time for receipt of proposals. Waiting until after proposals are due may result in the protest being dismissed as untimely—even if the protest has merit.

Why File a Pre-Award Protest?

There are several strategic benefits to filing early:

• Avoid Downstream Issues: A successful pre-award protest can force the agency to amend the solicitation, eliminating evaluation or eligibility flaws that might otherwise unfairly disadvantage a contractor.
• Preserve Competition: Pre-award protests can push back on unduly narrow requirements that limit competition, potentially opening the door for more vendors.
• Shape the Playing Field: Contractors may use pre-award protests to challenge problematic terms that favor incumbents or violate procurement law or regulation.

Practical Tips for Government Contractors

1. Review the Solicitation Early and Carefully: Assign internal or external counsel to examine every provision of the solicitation, especially evaluation criteria, past performance thresholds, and any special certifications.
2. Act Quickly: If an issue is identified, consult with counsel on strategy, consider engaging informally with the agency, and consider filing a protest before the proposal deadline. Remember, time is of the essence.
3. Document Concerns: Maintain clear records of communications with the agency and document any ambiguities or potential improprieties in the solicitation.
4. Engage Experienced Counsel: Pre-award protests involve nuanced legal and strategic decisions. An experienced government contracts attorney can assess the risks and benefits and draft a compelling protest.
5. Be Strategic, Not Combative: Pre-award protests are not personal—they are about ensuring a fair and lawful procurement. Maintain professionalism and clarity in all communications with the agency and in the protest itself.

Final Thoughts

Pre-award bid protests are a vital but underutilized tool in the government contractor’s arsenal—and, generally speaking, they are more likely to result in relief for the contractor than post-award protests. By identifying and addressing flaws in a solicitation before proposals are submitted, contractors can help ensure a fair procurement process and safeguard their competitive position. With proper legal guidance and strategic foresight, a pre-award protest can often prevent bigger problems down the line.