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Protests Involving Classified Contracts

shutterstock_249162364After investing bid and proposal dollars and intellectual capital in submitting a bid, most businesses can ill-afford to allow procurement error to prevent their win. But frequently companies working in the classified space are unsure of their ability to protest. While some of the procedures are novel, contractors have just as much right to protest a classified contract award as they do any other. 

An example is instructive. As a general proposition, you can file a protest with the GAO in a number of different ways: hand-delivery; email; commercial carrier; fax; or, US mail. In the unclassified space, most contractors file their protest by simply emailing it to an address set up for this purpose.

But the regulations require that the protest include a detailed legal and factual statement of the bases of the protest to include copies of relevant documents. 4 C.F.R. § 21.1(c). And all of the forms of delivering the protest are inappropriate for the transmission of classified information. So, the combined effect of the protest regulations and our obligations under the National Industrial Security Program Operating Manual (NISPOM) would appear to hobble our ability to file a protest. But this isn’t the case. Instead, the GAO has developed a practical work-around.

In the classified space, the GAO considers a protest filed when notice is delivered to the Contracting Officer. Thereafter, the GAO identifies a properly cleared staff attorney to manage the case, and the GAO attorney works with the CO and other stakeholders to ensure proper handling of classified information during the protest.

GAO protest regulations are notoriously tricky. You should consult a qualified attorney for guidance. But the simple take away is this: when your customer violates a statute or procurement regulation in the award of a classified contract, you have just as much right to protest the award as does a contractor working in the unclassified space.

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