Government contractors usually find themselves appearing before the Government Accountability Office (GAO) on a bid protest for one of two reasons: (1) you believe that the government erroneously did not award a contract to your business or (2) your business holds a contract award that is challenged by a disappointed offeror. Either way, there is a contract on the line that likely means a great deal to you (and your business).
In the past, we’ve discussed strategies for filing protests – which includes considering the important question of whether the GAO is the proper venue for the protest. We’ve also offered practical advice on winning bid protest arguments.
But, should you find yourself on the losing end of a bid protest decision (and at extreme risk of losing that important contract for good), the GAO offers a last resort – the Request for Reconsideration.
GAO Reconsideration is a bit of a misnomer, so it is helpful to first discuss it in terms of what it is not, before turning to what Reconsideration actually entails.
First, Reconsideration is not an appeal. In fact, there is no true “appeal” at GAO. While disappointed protesters still have the option of turning to litigation at the Court of Federal Claims, that is a separate and distinct process – a clean slate.
Reconsideration also is not a “do over” or second bite at the apple with the GAO. Contractors should never hold back an argument at the GAO because it is an extremely streamlined process (100 days from protest to decision). Arguments that are not well stated the first time cannot be revisited.
So, what is Reconsideration, exactly?
In a nutshell, GAO provides for Reconsideration where the protester can identify specific legal or factual errors in the decision denying the protest. Repeating or restating the same arguments (and hoping for a different result) will not get it done. Needless to say, it is a high standard – making for a low probability for success.
In a recent bid protest decision, GAO narrowed the opening for what protesters can argue on Reconsideration even further.
In connection with a Defense Logistics Agency diesel fuel services contract, the protester challenged the agency’s failure to set the procurement aside for performance by service-disabled veteran-owned small businesses. GAO disagreed and dismissed the protest, concluding that the contracting officer performed reasonable market research.
The contractor sought Reconsideration, but was again denied. GAO’s decision primarily relies on the most common rationale – the protester did not raise issues of fact or errors of law in the underlying opinion. Thus, GAO classified the Request for Reconsideration as “mere disagreement” with the protest decision.
Importantly, GAO also rejected the protester’s argument that the agency failed to produce key documents needed to prosecute the protest. There was, indeed, a dispute during the protest concerning whether certain key documents were protected source selection documents (and therefore not subject to disclosure) – but GAO classified that dispute as a protest matter, not a separate ground for Reconsideration of the decision on the merits.
While this is a post about Requests for Reconsideration at GAO – the takeaway for contractors should be focused more on bid protest procedure. Reconsideration of an adverse protest decision is possible – but rare.
Contractors should focus on strategy in advance and think about how to frame the best argument (leaving nothing in reserve). Moreover, if there is a dispute (like the battle for responsive documents in this case), contractors should take affirmative steps to protect their interests before a decision is handed down. By the time Reconsideration rolls around, its likely too late.