Protest Intervention: When a Competitor Files a Bid Protest, a Government Contractor Should Take Immediate Steps to Protect Its Award

As we have written previously, contractors must act fast to file a bid protest if they lose a contract award for improper reasons. But what should a contractor do when it wins the award and another competitor files a bid protest? It should immediately intervene in the protest to defend its award.

What is Intervention in a Bid Protest and Why Should the Awardee Intervene?

When a protest is filed at the Court of Federal Claims (“COFC”) or the Government Accountability Office (“GAO”), the contract awardee can intervene and become a party to that protest to help the Government defend the contract award. Instead of just relying on the Government to raise all the relevant arguments, the awardee can itself raise arguments on its own behalf that support and supplement the Government’s arguments. Every contract awardee should intervene to protect its award.

Primary reasons for intervention.

Several important reasons exist for the contract awardee to intervene in a protest, including the following:

• Protect the award.

If a protestor¹ wins a bid protest, the agency may be required to terminate the contract, reevaluate proposals, or even recompete the procurement altogether by issuing a new solicitation. This often occurs after the awardee’s price is revealed as part of the contract award decision, which places the awardee at a competitive disadvantage in any required new competition. Therefore, contractors that have spent months or even years both preparing a proposal and then waiting for a contract award should take every reasonable step to protect that award. Intervening in a bid protest to protect the award is the first and most important reasonable step.

• Have your counsel get access to the agency record and pleadings under the protective order.

Bid protests filed at the COFC and GAO have very strict protective orders that allow an admitted attorney to review unredacted pleadings and the administrative record, which cannot be revealed to the client. See GAO Guide to Protective Orders; COFC Form Protective Order. For the awardee’s attorney to be admitted under the protective order, the awardee must first intervene in the protest. Once admitted under the protective order, the attorney is then allowed to review the entire record and can then make arguments on behalf of the awardee based on all of the relevant information. The admitted attorneys may not reveal any confidential information to the client, but they can review the record in its entirety to defend the awardee’s interests. An awardee that has failed to intervene and failed to have an attorney admitted under the protective order is at a significant disadvantage because it will have nobody making arguments on its behalf to protect that award and will also not have the relevant information to do so.

• Present your own arguments to supplement the Government’s arguments.

A protestor must show that it is an interested party in the procurement to file a protest. For example, typically at GAO, if the protestor’s own proposal is ineligible for award, it is not an interested party that can challenge the awardee. At the COFC, the protestor must show that, but for the error, it would have been in the zone of active consideration. Wavelink, Inc. v. United States, 154 Fed. Cl. 254 (2021). Further, as we wrote in our prior alert, very strict protest deadlines can trip up protestors. Additional issues can also be raised about errors in the protestor’s own proposal that the agency did not find during evaluations.

The Government has different goals and resources during a bid protest and therefore may not find every available argument against a protest. A contract awardee will be in the best position to protect its award by having dedicated bid protest counsel acting on its behalf to supplement and support the Government’s arguments.

• Demonstrate initiative to the awarding agency.

In our experience handling protests, the Government greatly appreciates the contract awardee’s help to defend the award. The awardee’s intervention in the protest shows that the contract award is important and that the contractor is committed to defending its proposal and its future work, which can give confidence to the Government to defend the protest.

• Have influence in corrective action decision-making.

When a protest is filed, the Government will choose to either defend the award or take corrective action to fix the issues raised by the protestor. Counsel for an awardee that has intervened in a bid protest can have active communications with the Government’s counsel to help influence these decisions. To the extent that the Government chooses to proceed with corrective action, an intervening party can also have influence on the extent of the corrective action as actions that go too far can also be protested. See Wildflower Int'l, Ltd. v. United States, 105 Fed. Cl. 362 (2012). According to the GAO’s most recent annual report, GAO protests had a 52% effectiveness rate in FY2025 while only 14% of protests were actually sustained.  This means that the Government took corrective action in a substantial number of protests. Therefore, contract awardees should intervene to have influence over these conversations.

• Preserve arguments for appeal.

To the extent that an awardee loses a significant award for reasons that it disagrees with, that awardee may want to appeal the decision to a higher court. For example, our government contracts team has had significant victories on appeal after difficult lower court decisions. See Oak Grove Techs., LLC v. United States, 116 F.4th 1364 (Fed. Cir. 2024). However, arguments cannot be raised for the first time on appeal. To raise arguments to a higher court, those arguments must first be raised to the lower court. Another important reason to intervene into a bid protest proceeding is to ensure that all of the best arguments are raised so that they can be appealed if there is an adverse decision.

How and Where Can the Awardee Intervene in A Bid Protest?

As discussed in our prior alert, there are three primary forums to file a bid protest:  (1) the COFC; (2) the GAO; and (3) the government agency that issued the award.  

• Intervention at the COFC.

At COFC, intervention is governed by RCFC 24. To establish intervention as a matter of right under RCFC 24(a), an awardee must demonstrate that it has:

1. An interest in the subject matter of the litigation; 
2. An impairment of that interest if intervention is denied; and 
3. Inadequate representation of its interests by the parties in the action.

In practice, the COFC routinely allows the awardee to intervene because it has an interest in its contract award, its interest will be impaired if it cannot participate to defend that award, and (as noted above) the Government’s interests are not identical to the awardee’s interests since the Government can raise different arguments and can also take corrective action.  

To intervene, the awardee must file a motion to intervene with the COFC, along with a proposed order and a corporate disclosure statement required by RCFC 7.1. Once the awardee’s motion to intervene is granted, its counsel may then submit protective order applications in order to review the relevant documents. 

• Intervention at GAO.

At GAO, an “[i]ntervenor means an awardee if the award has been made or, if no award has been made, all bidders or offerors who appear to have a substantial prospect of receiving an award if the protest is denied.” 4 CFR 21.0(b)(1). Therefore, a contract awardee is given the right to intervene as an interested party in the GAO protest.

To intervene at GAO, the awardee must file with the GAO a request to intervene identifying its status as an awardee and seeking intervention. Once the intervenor is made a party to the GAO protest, its counsel can then seek to be admitted under the protective order in that proceeding.

• No automatic right to intervene in an agency protest.

Protests filed with the government agency typically do not allow the right to intervene. FAR 33.103. Agency protests are typically quick proceedings that are intended to be resolved within 35 days of the protest being filed. If an agency protest is resolved quickly, a contract awardee may in some cases not even know that the protest was filed.

CONCLUSION

A contract awardee should act fast to intervene in the bid protest proceeding when a protest is filed against its award. If you have any questions about bid protests and the right to intervene into bid protests, please contact Josh Mullen, Matt Delfino, or your regular Womble Bond Dickinson attorney. Womble Bond Dickinson’s Government Contracting team has extensive experience representing contractors with both filing and defending against bid protests and size protests.

¹ The COFC identifies a protesting party as a “protestor” while the GAO uses the term “protester.”  We have chosen to use protestor for this alert.