Don't Sit on the Sidelines: Federal Circuit Warns Awardees to Intervene Early in Bid Protests
This post discusses a recent Federal Circuit decision that illustrates risks for awardees of delaying a decision to intervene in protests of their awards.
Even though they have the opportunity to intervene and participate directly, government contractors whose awards are protested are sometimes tempted to assume the agency granting the contract will defend the award. The U.S. Court of Appeals for the Federal Circuit's decision in a recent case, Global K9 Protection Group, LLC v. United States, No. 2024-1842,--- F.4th ---, 2026 WL 1338238 (Fed. Cir. May 14, 2026), shows why that can be a risky assumption – and why awardees should seriously consider intervening anytime an important award is protested.
The case arose from a U.S. Postal Service (USPS) procurement for canine explosive-detection services. USPS awarded a contract to K2 Solutions Inc., and a competitor protested the award at the U.S. Court of Federal Claims (COFC). The awardee received notice of the original complaint but chose not to intervene, instead relying on the government to defend the award.
Importantly, after the protester's counsel gained access to the awardee's proposal in the protest proceeding, the protester amended its complaint under seal to allege that the awardee had materially misrepresented its past performance. In the amended complaint, the protester sought the awardee's disqualification and cancellation of its contract. As usual in bid protests, a protective order was in place that prohibited the release of information without the agreement of all parties, and the parties here did not file a redacted version of the amended complaint on the public docket. The awardee was therefore in the dark about these new allegations and continued to stay out of the protest.
COFC ultimately sided with the protester, concluding that the awardee made material misrepresentations in its proposal. COFC enjoined USPS from allowing the awardee to perform. USPS then terminated the contract for default, relying in part on the misrepresentation finding, and later awarded the work to the protester and another contractor. One can imagine the awardee's shock and surprise at this stunning reversal of fortune.
Shortly after COFC's decision was issued, the awardee moved to intervene in the protest, seeking reconsideration of the injunction. Many readers may sympathize with the awardee, as it did not even know of the allegations of misrepresentation against it until the decision was issued. Moreover, it would not have been in the dark if the parties had produced a public version of the amended complaint disclosing those allegations, but they did not, which the Federal Circuit later held was improper.
Still, COFC ruled the awardee's attempt to get involved at that point was too late and, on appeal, the Federal Circuit agreed it was untimely. The Federal Circuit concluded that once COFC's public docket showed an amended complaint had been filed and the awardee still chose not to intervene or seek to compel release of a redacted version, it accepted the risk. The Federal Circuit therefore declined to reopen the protest.
The Value of Intervening
For contractors, the takeaway is straightforward: Winning the contract does not mean you can safely watch a protest from the sidelines. The Federal Circuit recognized that the awardee relied on the agency because the agency, too, wanted to defend the award decision. But once the protester accused the awardee of misrepresentation, the agency could no longer effectively protect it. Indeed, the government often will lack access to information needed to dispute an allegation that a proposal contains misrepresentations; such information may be known solely by the offeror itself.
Though an allegation of awardee misrepresentation presents an especially compelling case for intervention, it is far from the only reason awardees should consider getting involved. Anytime a protest challenges an awardee's proposal, past performance, responsibility, representations or eligibility for award, the awardee may have special insight the government does not have and may have interests in defending itself that may diverge from the government's interests. Even where the protest challenges only the protester's evaluation, experienced intervenors counsel can provide valuable legal argument to the tribunal and assistance to the government's protest counsel. And as this case shows, the secrecy imposed by protective orders can, as a practical matter, prevent an awardee that has not intervened from learning what the protester is alleging.
Intervention also allows the awardee to protect its proposal contents and other proprietary information to the greatest extent possible. If it does not intervene, the awardee essentially leaves it to the government to decide what awardee information can be released to the public.
If your company has received an important federal award that you suspect will be protested or you have received notice of a protest of your award, it is important to reach out to seasoned bid protest counsel to assess your options. Holland & Knight's Government Contracts Group can help you decide whether intervening is appropriate and represent you in the protest to defend your award.