Picture this: After losing out on a lucrative Federal contract, you realize that an error within the solicitation led to the improper scoring of your company’s technical proposal. In other words, you deserve the contract, but an error by the agency means that someone else got the award. Aware of your rights and the tight protest timeline, you quickly prepare and file a timely bid protest – only to just as quickly have it dismissed as untimely.
The reason? There are certain types of procurement errors that need to be identified and protested even before proposals are due.
That is exactly what happened to a Federal contractor (Visual Connections LLC) that protested a $20 + million Health and Human Services SDVOSB task order for IT services. After the agency awarded the task order to another contractor, Visual Connections protested a solicitation irregularity, arguing that the relative weight of price and non-price factors was not properly disclosed in the RFP.
Although the Court of Federal Claims did not disagree with the substance of the protest, it still ordered a dismissal. Specifically, the Court found that Visual Connections should have raised the issue prior to bids becoming due. Failing to do so meant that later protest rights were waived.
In protests involving solicitation defects, the crux of the matter often comes down to whether the defect is latent or patent. In other words, is the flaw something that only becomes apparent after the agency reveals its evaluation results (latent)? Or something that should be obvious from the face of the RFP (patent)? If you are dealing with a patent defect (as was the case with Visual Connections), then a pre-bid protest is the only recourse.
As with most Federal bid protest related issues, the key takeaway is to know your rights and act quickly. If you notice a defect in the solicitation, raise it up the chain with the CO and – if all else fails – prepare and file your protest before proposals are due. The “wait and see” method simply will not cut it.