When you call an ambulance, you want it to arrive in a timely fashion. Similarly, if you have a contract award to protect against a bid protest, you had better intervene in the protest in a timely fashion. That’s what one ambulance company recently learned the hard way.
First, some bid protest basics: A disappointed offeror has the right to file a bid protest to the agency conducting the procurement, the Government Accountability Office (“GAO”) or the U.S. Court of Federal Claims (“COFC”). In the latter two forums, the offeror that won the contract has the right to intervene to argue that the award was properly made. Generally speaking, such an intervenor will be treated by GAO or the court, as the case may be, as an equal party in the protest proceedings. But, that’s only if the awardee actually intervenes.
In Excelsior Ambulance Service, Inc. v. United States (COFC No. 15-189C), Excelsior successfully protested the award of a contract by the United States Department of Veterans Affairs (“VA”) to LMC Med Transportation, LLC (“LMC”). LMC did not intervene in that protest until after the COFC had issued a decision in favor of Excelsior, which included ordering the VA to terminate LMC’s contract. Then, LMC moved for leave to intervene in the protest for the purpose of appealing the merits of the court’s decision in Excelsior’s favor.
The court denied LMC’s motion, stating in part:
It is apparent that LMC deliberately decided not to intervene in this protest…As a result, it assumed the risk that defendant [the Government] might not adequately represent its interests. LMC realized that it made the wrong decision when it read the court’s December 4, 2015 Opinion and Order, and is now, after judgment has issued, attempting to avoid the consequences of that decision. However, as explained above, none of the factors that the court must consider with respect to the timeliness of LMC’s motion weighs in favor of allowing LMC to intervene. Consequently, after considering all of the relevant circumstances, the court DENIES LMC’s motion for leave to intervene as untimely.
So, if you win a contract and your competitor files a protest, you probably do not want to sit on your rights. It might be a good idea to call your Government contracts lawyer ASAP and file proper papers to intervene.
For a copy of the Decision in the Excelsior case, click here.