Editor’s note: As Steve Charles stated in a posting on the GPN site, it can be an “end-of-year selling frenzy” as the curtain comes down on the federal fiscal year on Sept. 30. Charles, who is co-founder of immixGroup, a value-added distributor, says, “A lot can fall through the cracks during the end-of-year selling frenzy. Deadlines can be missed, phones could go unanswered, and sometimes, potential deals are left on the table.”

GPN reached out to Bob Wagman Jr. to get some tips on what contractors need to do as the end of the federal fiscal year approaches. Wagman is a partner at Bracewell, a law and government relations firm primarily serving the energy, finance and technology industries throughout the world.

Wagman has experience representing U.S. and foreign companies of all sizes in a range of industries. He advises firms in all facets of conducting business with the government, including government contracts, grants and other federally funded projects. His experience ranges from representing companies in litigation matters before courts and administrative tribunals to advising clients in transactional matters and regulatory compliance. Wagman’s commentary focuses on bid protests in government contracts. His views are below.

Are You Going to Protest?

We’ve all been there. “How could they choose them instead of us?” After months of pursuing an opportunity and then spending countless hours—many on nights and weekends after doing your “day job”—drafting an unbeatable proposal, the government informs you that it has awarded “your” contract to someone else. Now what? Do you take our lumps and move on, or do you file a protest?

As the annual push to award federal contracts by the end of the fiscal year approaches, there are going to be many companies facing this exact question. Deadlines for filing bid protests are quick—generally, within ten days of when you learned of the adverse agency action—leaving little time to think about it. Accordingly, there are some nuances and trends that companies (especially those that have never been through a protest) should start considering in advance.

The latest Government Accountability Office (GAO) statistics show that there has been a recent increase in the number of protests filed – 2,789 in FY 2016, a 6 percent increase over the previous year, as well as in increase in the sustain rate to 22.56 percent, a substantial increase from the 12 percent rate in the previous year. Bear in mind, the sustain rate only looks at the cases in which GAO reaches the merits of the protest, (i.e., out of the 616 cases in which GAO reached the merits, it sustained 139).

The “effectiveness rate” in which an agency took some sort of corrective action, either on its own or at GAO’s recommendation, was 46 percent, up from 45 percent the previous year. Note that being granted some sort of relief does not mean the protester ultimately received a contract. While these statistics are not formally tracked, recent studies rate the chances of a protester ultimately getting a contract at around 12 percent.

Bid protests are becoming more prevalent in federal procurements. While prevailing in a protest remains an uphill battle, preparing in advance to challenge an award will put you in the best position possible should you find yourself deciding whether to pursue a protest.

Editor's note: GPN will be spotlighting government buying and selling opportunities as the end of the federal fiscal year approaches. The topic will be discussed in a series of four Use It or Lose It e-newsletters that will be deployed in July and August before the end of the federal fiscal year on Sept 30, 2017.

Please email michael.keating@penton.com if you'd like to submit a commentary on what federal buyers and contractors need to do before the end of the federal fiscal year, the federal marketplace or similar topic. Go here for a sample issue of the free Use It or Lose It e-newsletter.

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