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AWR Articles
Bid Protests — Challenging A Procurement Action
By Charles L. BonuccelliGovernment contracting is not an easy industry. It is full of competition and the larger the procurement, the more offerors. Everyone is trying to get a piece of the huge federal procurement pie. In competitive bids for every winner there are one or more losers. And just because a company lost does not mean it should have. Maybe it has reason to file a bid protest.
A bid protest may be submitted to the General Accountability Office (GAO) anytime after issuance of the request for proposal (RFP) and before submission of proposals, and then after award of the contract.
During the RFP process the government gives the offerors the right to comment on the technical requirements and evaluation criteria of the procurement. If the government has a criterion that would discriminate against an offeror or would not treat all offerors equally, an offeror must inform the issuing agency. If the agency does not change it, an offeror may file a bid protest to GAO. If it is not protested and the offeror loses, the offeror does not have a right to protest that ground after award of a contract.
So your company lost the bid. Questions are asked.
- Did we have a good proposal?
- Was our price competitive?
- Did we give the government what they needed?
- How did we compare to the winner?
These questions can be answered to some degree when the government gives a contractor a ‘de-briefing’ after it has awarded a contract to another offeror. It is during this debriefing that you get an idea of how you stacked up against the winner for management, technical, cost and past performance.
But other questions may be raised during the de-brief, such as:
- Did the government treat us in a fair manner?
- Did the government evaluate the proposals as it stated in the RFP
- Did the other offeror “game” the system?
- Does something you see or hear in the de-brief just not seem right?
There are many cases where the government has not done its job in evaluating the proposal and treating all offerors equally. Equally here does not mean exactly the same, but rather providing proposal analysis that does not benefit nor discriminate against one or more offerors. However, just because the government makes a bad decision does not mean it did anything wrong. Nor is a bad decision grounds for a bid protest. Challenging solely the judgment of government official, absent of clear bias, is not a reason for protesting an award. A bid protest is a serious and costly process and should not be undertaken unless the grounds are clear and convincing.
Once a company thinks it has grounds it files a bid protest with the General Accountability Office (GAO) and an administrative judge is assigned the case to decide the merits of the bid protest. He or she will consider the facts of the protest and decide if there are any grounds to the initial protest and require disclosure of the evaluation record to the protestor’s attorney.
In evaluating, the reasons for filing a protest an offeror must consider all the possible reasons why they lost. But there are several grounds that may or may not be reason to protest an award. For example:
- Buying in. If the contractor is buying-in (charging less than its cost) and the government is not protested from the additional cost, it may be a protest grounds. However, buying-in is permissible where both parties know it and the government is protected.
- Unbalanced bids – The government has a right to reject unbalanced bids. Unbalanced bids are when the awardee has charged more for some early line items and lowered the cost on later line items. When a bid it is materially unbalanced, the offeror will recover its costs very early in the contract. This may be a ground for a protest where the government never knew of the issue, and never considered the consequences.
- Irrationality of the government process – The government is supposed to analyze proposals in a rational manner, as opposed to an arbitrary and capricious manner. This is a protest ground if the irrationality discriminated against the protestor. However if the irrational action had the same effect on all offerors, i.e. raised every ones proposed cost by the same amount, it is not a protest ground.
The protestor must prove the following in order to win a bid protest.
1. How the government evaluated the proposals included tests that were not part of the evaluation criteria or what was required to be evaluated was not, or that what the agency did treated offerors differently and did not meet the basic requirements of a proper evaluation.
2. That how the government evaluated the proposals adversely affected the protestor( s) evaluation relative to the evaluation of the awardee, and
3. That, but for the government’s wrong actions, the award may have been made to the offeror.
2. That how the government evaluated the proposals adversely affected the protestor( s) evaluation relative to the evaluation of the awardee, and
3. That, but for the government’s wrong actions, the award may have been made to the offeror.
If the protestor fails on any one of these points, it will lose. If it proves these three points its bid protest may be sustained. There is still the requirement to prove it satisfactorily to the GAO for GAO to sustain the proposal. The sustain rate is lower than 50%
Once GAO sustains a protest, the result is not necessarily the award of the contract to the protestor. The GAO may recommend that the agency reevaluate, take corrective action or simply reimburse the offeror for its proposal preparation cost. In cases of corrective action or reevaluation, the protestor may still not win the contract. Thus, protesting a contract has its own inherent risks.
In addition, there are strict time limitations on filing a bid protest that are absolutely enforced by GAO. Missing a deadline by one day will destroy an offeror’s rights to pursue the bid protest.
So in evaluating whether a company should pursue a bid protest, it should
consider:
- The basis of the bid protest, that is what are the grounds for the protest
- The likelihood of proving the grounds of the bid protest, that is what evidence do we have and what do additional data do we need to win
- The cost of a bid protest that may run from $15,000 to six figures.
- The size of the procurement, and
- The disruption to the staff and relationships with the agency.
A company should engage an attorney familiar with bid protests as soon as it starts considering whether it should file. This will ensure that it meets the required GAO deadlines. Also a good attorney will help you decide whether or not you should file the initial bid protest. The attorney will also prepare the appropriate filings and identify significant issues and hire appropriate experts to address such issues. Offeror’s employees are not permitted to look at the protested record because it contains the proprietary data of other offerors.
There are always times that a bid protest should be filed by an offeror because of the effect the loss would have on the offeror’s revenues, but it must have a reason to file that is supported by sound and rational thinking. Always keep in mind that the government has the right to make a wrong decision as long as it follows its disclosed criteria, is not discriminating in applying them and is rational in it’s judgments.