Followers of our Blog know that we pay special attention to the Government Accountability Office (“GAO”) and how its decisions impact government contractors. In fact, I covered the basics of GAO bid protests as part of a 10-part Blog series (for those interested, Part 1 of the series can be found here).
While we’ve covered GAO bid protests generally, there are certainly details and complexities still to be discussed. For example, the GAO recently sustained a protest filed concerning the difference between the government’s actual needs and what was solicited from contractors as part of the RFP. The decision (System Studies & Simulation, Inc., B-409375.2; B-409375.3) can be found here in its entirety.
The protestor challenged the award of a fixed-unit-price, indefinite-delivery, indefinite-quantity requirements contract to provide instructor pilots to perform helicopter flight training. After the contract was awarded, however, the government made unilateral changes to its scope – reducing the agency’s overall anticipated requirements by more than 70 percent. Based on these significant alterations, the GAO noted that: “The record therefore shows that the agency’s current requirements bear little relationship to the requirements that it solicited, and for which the offerors competed.”
After considering the reduced scope of services, GAO sustained the protest and recommended “that the agency either amend its current solicitation to reflect its actual requirements, or cancel the current RFP and issue a new solicitation that reflects its actual requirements.” The basis for GAO’s decision is the long-standing rule (well-established in GAO case law) that agencies may not properly award a contract on a basis that is fundamentally different from the basis upon which the competition for the requirement was conducted.
The System Studies decision provides an interesting commentary on the proper basis for a protest, as well as the meaning of actual prejudice. These are concepts that should be considered as part of every GAO bid protest.