A potential contractor has standing to bring a post-award bid protest if it had a substantial chance of receiving the federal government contract award “but for” an alleged procurement error. An incumbent contractor that fails to submit a bid in response to a government solicitation, however, lacks standing to bring a post-award bid protest. This is true even if agency action is alleged to have prejudiced the non-bidder’s ability to participate in the procurement.

In order to bring a Tucker Act bid protest action in the Court of Federal Claims, a party who has an opportunity to object to the terms of a government contract solicitation must do so prior to the close of the bidding process. Otherwise the right to protest the legality of the solicitation is waived.

An April 22, 2010, United States Court of Federal Claims decision in Shamrock Foods Company v. United States, 92 Fed.Cl. 339, dismissed a post-award bid protest by a non-bidder, finding that the waiver rule precluded raising an objection to a government solicitation after the fact in a post-award bid protest action. Only actual bidders are interested parties with standing to bring a post-award bid protest.

To discuss your government contract bid protest questions, contact Karen S. Hindson of Hindson & Melton LLC.