In J&J Maintenance, Inc., B-423821.2; B-423821.3 (April 20, 2026), the Government Accountability Office (“GAO”) issued a decision that provides a helpful reminder for government contractors pursuing bid protests. In particular, the decision reinforces the principle that mere identification of a waived or relaxed material solicitation requirement is insufficient for GAO to sustain a protest. The decision warns that, to prevail in such a challenge, a protester must also demonstrate that it was competitively prejudiced by the agency’s actions.

Background

The U.S. Army Corps of Engineers (“USACE”) issued a request for proposals seeking a single task order under a multiple-award indefinite-delivery, indefinite quantity (“IDIQ”) contract for operation, maintenance, and facility management services at Defense Health Agency facilities in Germany, Belgium, and Italy. Award was to be made on a best-value tradeoff basis between two equally weighted evaluation factors: technical/management approach and price.

The solicitation included several requirements for the technical/management approach factor. First, offerors performing work in Italy were required to initiate registration for an anti-mafia “white list” prior to submitting a proposal. Second, offerors were required to list their proposed subcontractors.

Following an initial award to King and George, LLC (“K&G”), J&J Maintenance, Inc. (“J&J”) filed a protest with the GAO, and the agency took voluntary corrective action. After conducting a third round of discussions and a new evaluation, USACE again awarded the task order to K&G. J&J filed another protest alleging that K&G did not timely initiate registration for the anti-mafia screening prior to submitting its proposal and failed to list its subcontractors as required.

GAO Analysis

GAO first disagreed with J&J’s contention that K&G’s proposal failed to satisfy the solicitation requirements, finding instead that USACE’s evaluation of the awardee’s proposal was reasonable.[1] In its decision, GAO put special emphasis on a protester’s burden to demonstrate prejudice, noting that even if USACE had waived the solicitation requirements, J&J had failed to demonstrate resulting prejudice.

On this point, GAO explained that its prior decisions have “concluded that an agency may, in some circumstances, waive a material solicitation requirement if there is no prejudice to the other competitors and the quotation or proposal will otherwise meet the agency’s needs.” GAO then clarified the prejudice standard in the context of an alleged waiver of a material solicitation requirement:

[P]rejudice does not mean that, had the agency failed to waive the requirement, the awardee would have been unsuccessful, but rather that prejudice is assessed based on whether the protester would have submitted a different proposal or could have done something else to improve its chances for award had it known that the agency would waive the requirement.

Relying on this principle, GAO found that even accepting J&J’s two allegations that USACE waived material requirements from the solicitation, J&J failed to show how it could have improved its competitive position had it known about the relaxed requirements.

First, regarding the solicitation’s anti-mafia white list registration requirement, GAO noted that J&J failed to explain how it would have changed its proposal and increased its likelihood of award had it known the agency would not strictly enforce the requirement. Nor did J&J show how its competitive position was harmed by K&G purportedly filing its registration packet one day late. Second, with respect to the requirement to identify subcontractors and personnel by name, GAO pointed out that J&J again failed to articulate how it was competitively prejudiced or how it would have altered its proposal had it known the agency would relax this purported requirement. GAO explained that with respect to personnel, the agency reviewed sanitized proposals from which subcontractors names had been removed. As such, the Agency’s waiver of the requirement that offerors include names in their proposals did not affect either party’s evaluation and thus did not establish prejudice for J&J.

Key Takeaway: Material Waiver Alone Is Not Enough – Prejudice is Required

The J&J Maintenance decision reminds contractors that identifying a deficiency in an awardee’s proposal—or even establishing that an agency waived or relaxed a material solicitation requirement—is only half the battle. GAO has repeatedly held that an agency may waive a material solicitation requirement provided there is no prejudice to the other competitors and the awardee’s proposal will otherwise satisfy the agency’s needs. Accordingly, when an agency does waive such a requirement, GAO will not sustain a protest unless the protester can demonstrate that it was prejudiced by the waiver.

Importantly, prejudice is assessed based on whether the protester would have submitted a different proposal or quotation, or could have done something else to improve its chances for award, had it known that the agency intended to waive or relax the requirement. A protester cannot simply point to an awardee’s noncompliance and argue that it would be “in line for award” if the proposal were rejected. GAO has made clear that is not the appropriate inquiry when an agency has waived or relaxed a solicitation requirement.

Practical Guidance for Contractors

This decision underscores the importance of developing a comprehensive protest strategy—one that does not rest solely on identifying technical deficiencies in a competitor’s proposal. A contractor who discovers a discrepancy between an agency’s evaluation of its proposal and the solicitation’s stated evaluation criteria should promptly engage counsel to assess its options.

Experienced counsel can assist with identifying and developing protest grounds that satisfy GAO’s prejudice standard. This includes crafting arguments that are legally sound and positioned to withstand the agency’s likely defense that any noncompliance was harmless. This analysis often comes down to a common-sense question: what difference to the disappointed offeror would it have made if the awardee was required to complete a specific registration and was such claimed prejudice supported by the record? Just as importantly, during active GAO litigation, counsel operating under a protective order can access and review the full procurement record, including the awardee’s proposal, and investigate develop additional evidence supporting a prejudice allegation as well as possible additional protest grounds that were not be apparent from the initial debriefing alone. But such additional information is still required to be tested against the same “did this problem actually prejudice the protester” requirement.

As the J&J Maintenance decision illustrates, even facially compelling arguments about an awardee’s noncompliance will likely fail if the protester cannot articulate a concrete theory of competitive prejudice or if the protester’s own proposal suffers from the same shortcoming. Early engagement with counsel will help contractors avoid these pitfalls and build the strongest possible case.

[1] GAO considered and rejected various other protest allegations. This blog post will focus on J&J’s challenges to the agency’s waiver or relaxation of material solicitation requirements.