Daniel S. Koch, with decades of experience in the field, leads the firm's Government contracts practice. His track record of success includes having primary responsibility for innumerable bid protests, including successful representation of both protesters and awardees.

As a result of his wealth of experience, Mr. Koch can quickly assess the strength of potential grounds of protest for contractors considering that course of action. If a company has already won an award, he can often judge the likelihood of success of a protest brought to challenge it. His considerable knowledge of applicable procedures also permits him to cost-effectively advise about litigation, alternative dispute resolution and/or settlement strategies. Mr. Koch's background as a former computer systems programmer allows him to quickly master technologically complex issues.

This page sets forth some sample bid and size protest assignments, and some frequently asked questions about bid protests and size protests for contractors that may not be familiar with these procedures.

Representative examples on behalf of the protester include:

• Two protests against award of Army services contracts in Afghanistan, alleging failure to follow evaluation criteria, changing the award from best-value to technically qualified lowest price and other violations. The Army withdrew one award three days after the protest was filed, announcing it would revise the Solicitation and re-compete the award. The Army withdrew the other shortly before it would have had to defend the case, and instead reevaluated the proposals and awarded the contract to our client.
• A protest against award by the National Science Foundation of a contract for website development and multimedia support services, alleging that key requirements were relaxed for the awardee and "bait and switch" misrepresentation of key personnel by awardee. After initial corrective action by the agency did not rectify the problems, a second protest was sustained. The agency revised its requirements, and recompeted the award.
• A protest against the Department of Homeland Security for excluding an incumbent contractor of guard services from the opportunity to compete to continue to provide services. After brief litigation in the Court of Federal Claims, the agency took corrective action, and recompeted the new contract, which ultimately was won by our client.
• A protest against the Army’s purported sealed-bid competition for mailroom services, that in fact attempted to evaluate the quality of the services by requiring submission of management plans, and that was based upon inaccurate statistics regarding the workload in previous years. The protest was filed before the due date for bids, and was resolved in a matter of days on terms that led to a favorable result for our client.

Representative examples on behalf of the awardee include:

• Protest against award by GSA to our client of a contract to operate a component of the federal E-Authentication program, alleging an organizational conflict of interest, that the agency had relaxed a mandatory requirement for the awardee and had misevaluated protester’s proposal. The protest was denied and our client retained the contract.
• Protest against award by the Coast Guard to our client of a contract for sewing recruits’ uniforms. The former incumbent challenged the evaluation of the awardee’s technical proposal and past performance, and alleged that inadequate discussions had been held. The protest was denied and our client retained the contract.

Representative size protests include:

• A protest against a small-business set-aside award by an office administered by the Department of Justice of a contract for certain support services to a newly-organized company in which the principal was the former sales manager of an incumbent that had outgrown the relevant size classification. The new company was extensively subcontracting to its principal’s former employer. The protest was sustained.
• A protest against the Federal Communications Commission’s award of a small-business set-aside contract for certain support services, to a company whose own website revealed that its sales had exceeded the allowable maximum. The award was withdrawn and our client, the next-ranking offeror, received a five-year contract.

A few FAQ's about bid and size protests:

Q. How early should a contractor consult counsel about a possible bid protest?

A. Right away! At the Government Accounting Office (GAO), a post-award protest must be filed no more than 10 calendar days after the protester knew or should have known the basis of protest (whichever is earlier), except for protests of negotiated procurements when a debriefing is “requested and, when requested, is required” (that is, a debriefing that is required by law). In those cases, the 10-day period will begin to run on the date of the debriefing. However, filing well before the end of the 10-day period may be advantageous for purposes of obtaining suspension of performance (see next question). Pre-award protests generally must be filed before submission of initial proposals.

Q. Will performance of the contract be suspended during the bid protest?

A. A protester often will wish to obtain suspension of performance of a challenged award, pending the decision on the protest. Under the Competition in Contracting Act, 31 U.S.C. § 3553(c), (d), and the FAR clauses implementing it, 48 C.F.R. (FAR) § 33.104(b), (c), the agency must suspend performance if it receives notice from GAO that a protest was filed within 10 days of award, of within five days of a required debriefing. Since GAO sometimes takes a day to notify the agency, to obtain suspension protests must in some cases be filed as early as the fourth day after a debriefing.

The Competition in Contracting Act also affords agencies certain rights to "override" suspensions, i.e., continue performance, under certain conditions. If an agency invokes this exception, and permits the new contractor to resume performance of the challenged contract, a protester may challenge the decision in a court case.

Q. Should a contractor whose award is protested get involved in the bid protest?

A. An awardee should usually intervene in a bid protest. While the Government agency will usually defend the award capably, the Government’s interests are often not identical to those of the contractor. At the very least, counsel for the awardee can seek to ensure that the protester does not learn confidential and proprietary information about the winning proposal as a result of the protest. A motion to intervene should be filed as soon as possible after learning that a protest was filed against an award.

Q. Where can I read more about GAO bid protests?

A. The GAO publishes an excellent publication, "Bid Protests at GAO: a Descriptive Guide," Eighth Ed., 2006 (GAO-06-797SP), which can be downloaded from the GAO's website: http://www.gao.gov/decisions/bidpro/bid/d06797sp.pdf.

Q. How soon must a contractor file a size protest?

A. Size protests must generally be made to the contracting officer no later than the fifth day after the contractor learns the identity of the awardee. Furthermore, since the size protest procedure doesn’t normally allow subsequent submissions by the protester, it is particularly important to develop information about the awardee from public sources as quickly as possible. So, as with bid protests, a contractor considering a size protest has no time to waste after learning it has lost an award.

Q. Does a successful bid protester recover attorneys' fees?

A. At the GAO, a successful bid protester will recover its costs of filing and prosecuting the protest. For a small business, legal fees are not generally subject to a cap or limit; for non-small businesses, reimbursements are limited by law to a rate originally set at $150 per hour, but adjusted by a cost-of-living index that in late 2006 equated to approximately $200 per hour. At the Court of Federal Claims, a successful protester will usually also recover its fees, although the entitlement rules and the reimbursement limit for non-small businesses are somewhat different.

Q. Does an awardee recover its attorneys' fees for defeating a bid protest?

A. Generally not. However, in that situation, the awardee should be content to retain its contract award.