Worried Three’s a Crowd? Decline Intervention at Your Own Peril

Last week, the Federal Circuit heard oral argument in Global K9 Protection Group, LLC v. United States, a bid protest appeal concerning, in part, whether an awardee who chose not to intervene at the outset of the protest should have been allowed to do so after its award was enjoined.

Although the decision remains pending, the panel seemed unsympathetic to the awardee’s argument that, due to a lack of certain redacted filings, the awardee did not know there were allegations against it. For example, one judge on the panel noted that the Court could not now “unwind everything” and that if the awardee wished to intervene to protect its award, the time to do so was at the outset of the protest.

This case serves as an important reminder that the safest course of action for a company whose award is protested is almost always to intervene, and to do so promptly. Experienced protest counsel can work with companies before and following award to develop tailored protest or intervention strategies and to be more- or less-active in intervention. But sitting on the sidelines is not advisable. Without intervening, a company can unknowingly jeopardize its hard-won award.