Bid Protests

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Contractors who have filed or have considered filing a Bid Protest based on a mistake by an agency know that they have very little time to recognize an issue and take action before the Government Accountability Office (GAO).

  • Typically, a protest challenging the award of a contract must be filed within 10 days (calendar, not business) of when a protester knows or should know of the basis of the protest.
  • GAO routinely dismisses untimely protests without even considering the substance of the appeal.
  • Government Agencies will always target timeliness in their brief when it might be an issue.

These facts result in many otherwise worthy Bid Protests being dismissed. While this feels harsh to contractors with legitimate complaints about tight turnaround, it is an integral part of keeping meritorious and timely protests before GAO process quick, inexpensive, and effective overall.

However, there are two important favorable rules GAO has developed over the years that may rescue contractors who might otherwise think they are out of luck due to timeliness concerns.

  • Diligent pursuit of information that gives rise to a basis for protest may lead to a favorable decision on timeliness for contractors.
  • Doubts over timeliness are resolved in favor of protestors.

These two considerations help somewhat ease the harshness of the strict timeliness rules GAO has.

A recent 2019 GAO case reminds us that “diligent pursuit” of a basis for protest may save a contractor whose Bid Protest otherwise appears untimely.

In Miltrope, the Army argued that the Bid Protest should be dismissed because the contractor knew the basis of its protest after its pre-award debriefing when it was initially excluded from the competitive range. The Army had determined the sample device Miltrope provided did not exceed the minimum specification required.

The contractor argued that its protest was timely because it only realized that it had a basis for protest once the sample device was returned to it and forensic analysis indicated that the settings had been changed. In other words, it only became aware of its basis for protest once it received the device back from the agency. Recall the “knows or should know” aspect of timeliness discussed above.

Those changed settings, which directly affected the test the Army had performed, effectively eliminating Miltrope from the competitive range through no fault of their own.

GAO decided that because the contractor had “sought diligently” to determine the cause of its device’s test failure, and had made this determination within eight days that it would hear the substance of the protest.

I mentioned earlier that GAO resolved doubts over issues of timeliness in favor of protesters. This rule essentially means that if a case is a close-call, tie goes to the protester. Pairing the “diligent pursuit” concept with GAO’s long-standing rule resolving doubts in favor of protesters, can create a circumstance that rescues protests that appear to be untimely.

Before even getting to this stage, contractors should be very aware of all of the potential pitfalls surrounding timeliness even before they begin submitting proposals for government contracts. Being prepared to deal with an unfortunate scenario can make all the difference in whether you have the option of protesting before GAO.

Bid protests at the Government Accountability Office (GAO) have spawned a distinct area of the law.  With multiple evaluation schemes to consider, there are an ever-growing number of strategies for disappointed offerors to challenge alleged agency procurement errors.

Just like there are best practices for bid protests, there are also strategies to avoid at all costs.  Chief among the arguments a protester should steer clear of is “mere disagreement” with the agency.

In a nut shell, “mere disagreements” arise where the protester challenges the agency’s decision based only on the notion that it deserved a better score, more strengths, better adjectival rating (and so on).  These arguments do not identify mistakes by the agency – they just wish the agency reached a different result during the evaluation.

GAO is not shy about denying “mere disagreement” protests out of hand.  For example, in a recent bid protest decision concerning an Army IT support services contract, GAO found that the protester’s arguments concerning the number of strengths/weaknesses and adjectival ratings assigned by GAO did not offer any grounds to sustain the protest.

The underlying rationale for the decision is GAO’s unwillingness to substitute its own judgment for that of the agency.  In other words, GAO finds that the agency is in the best position to assess its own needs and evaluate proposals.

GAO is also unwilling to split hairs when it comes to evaluation ratings.  For example, in this case, the protester unsuccessfully argued that the agency’s determination that a portion of its technical proposal included only strengths and no weaknesses should have automatically resulted in the assignment of a “significant strength.”  GAO disagreed, finding that the RFP defined a significant strength as an aspect of a proposal that would be “appreciably advantageous to the government during contract performance.” While the protester’s proposal may have exceeded certain requirements, GAO would not step in to overrule the agency’s determination that the proposal did not significantly exceed those requirements.

So, if “mere disagreement” is out, does that mean it is impossible to challenge an agency’s evaluation of your proposal?  Not at all.

The key is to focus on the essential element of all bid protests – a procurement error by the agency resulting in competitive prejudice (i.e., a diminished opportunity for contract award).  Rather than focus on ratings or strengths, the protest should address specific errors made during the evaluation process.  Did the agency misinterpret part of your proposal?  Or overlook something altogether?  Did the agency offer the awardee an advantage that your firm did not receive?

While these kinds of errors may be difficult to pinpoint at first, a skilled debriefing strategy can help draw them out.

The bottom line is that bid protests require a significant investment of time and resources.  If your firm’s only arguments amount to mere disagreement with the agency, those resources are likely better spent elsewhere.

 

As I’ve covered here before, low-priced, technically acceptable procurements (LPTA) shine a light on a contractor’s ability to provide the required services at the lowest possible cost to the government.  Leave your style points at home.  It is all about getting lean to win the award.

But when the evaluation is that simple, is there any room to challenge an LPTA award decision?  The answer is Yes — and a recent GAO protest offers some important insights into best practices.

The protest concerned an Air Force contract to provide tactical recovery kits.  Covering both LPTA bases, the protester argued that the agency (1) unreasonably found the awardee technically acceptable and (2) conducted inadequate discussions concerning price.

On the first question, GAO disagreed that the agency erred in evaluating the awardee’s proposal.  Stated differently, the agency determined that the awardee’s proposal was technically acceptable and GAO found no basis for overturning that conclusion.

With the technical acceptability side settled, only the question of the lowest price remained.

The protester argued that the agency held inadequate discussions, but GAO would not consider the issue because it lacked a key allegation.  Specifically, the protester never alleged that it would have lowered its price if the discussions had been adequate.  Without that allegation, GAO found there could be no prejudice.  The awardee remained technically acceptable and offered the lowest price.

Although it was unsuccessful, this protest nevertheless offers a great roadmap for firms considering an LPTA protest.  If possible, the protest should identify that the awardee was not, in fact, technically acceptable.  In that case, the award should skip over that offeror and proceed to the next in line.

In the alternative, the protest should identify a procurement error resulting in a misevaluation of your firm’s price (i.e., the missing element of the protest examined in this post).  It only makes sense that a LPTA protest should take a stance on your firm’s ability to offer the government the lowest price.

 

 

Federal procurements often include a competitive range of offerors seeking the contract award.  The Federal Acquisition Regulation (FAR) competitive range procedure offers the agency an incremental stage in the competition where it can pare down a large pool of offerors into a narrow group consisting of only those proposals with a reasonable chance of receiving the award.

But what qualifications are used to determine the offerors included in the competitive range?  And can you protest your firm’s improper exclusion from a competitive range?

Let’s start with that second question.  Yes.  Your firm is absolutely entitled to protest an agency’s competitive range decision if it was made unfairly or not in accordance with the solicitation requirements.  In fact, competitive range proposals sometimes have a greater window for success.  There is much less heartburn involved for the agency in adding one more qualified offeror to the pool (as opposed to traditional protests that challenge the agency’s final decision and seek to wrestle a contract award away from someone else).

Now, circling back to the first question, FAR 15.306 (Exchanges with offerors after receipt of proposals) defines a competitive range as consisting of “all of the most highly rated proposals.”  The agency evaluates proposals against the criteria included in the solicitation to narrow the field.

In a recent protest, an offeror challenged its exclusion from the competitive range for a contract for base operations and spaceport services to be performed at the John F. Kennedy Space Center and NASA facilities on Cape Canaveral Air Force Station.  In part, the protester challenged the agency’s decision on the basis that its proposal included an acceptable technical approach (i.e., the proposal was not defective and conceivably could have received the contract award).

GAO took the opportunity to emphasize that mere technical compliance does not guarantee inclusion in a competitive range.  Specifically, GAO accepted the agency’s conclusion that the lack of strengths in the protester’s proposal, combined with its high price (as compared to other similar offers), rendered it unlikely to be considered for award, even if some of the proposal’s weaknesses could be addressed in future discussions with the agency.

In other words, the proposal was excluded from the competitive range because there was no reasonable chance it would receive the contract award.

Interestingly, GAO’s decision also addresses the protester’s argument that the agency was required to conduct a best-value tradeoff analysis among all of the evaluation factors when establishing the competitive range.  Again, GAO disagreed with protester.  The focus of a competitive range is on culling down the group of offers to only the most highly rated – not following the procedures included in the solicitation for the ultimate contract award decision.

GAO’s decision should not discourage contractors from pursuing a debriefing after exclusion from the competitive range – or even filing a protest.  The protester’s procedural basis was solid – the agency is accountable for making its competitive range decision in a fair, reasonable, and well-documented manner.  With better facts, a competitive range protest offers a low-risk, high-reward opportunity to get back into the competition for the award.

In today’s Federal marketplace, it is very common to see solicitations that give the Agency the option of entering into discussions with offerors.  The primary objective of discussions is to maximize competition and, in turn, the Agency’s ability to obtain the best possible value.

Once it makes the decision to enter into discussions, the Agency must do so in good faith and with all offerors remaining in the competition.  Further, the discussions themselves must be “meaningful” – a fairly subjective standard that (predictably) often works its way into bid protests.

In a nutshell, to be meaningful, discussions must identify proposal deficiencies and significant weaknesses that reasonably could be addressed in order to materially enhance the offeror’s potential for award.  The discussions also need to be sufficiently detailed to lead the offeror to the areas of its proposal that require revision or amplification.  Discussions should not be misleading or prompt the offeror to engage in a way that will not address the Agency’s actual concerns.

All of that said, the Agency is not required to hold the offeror’s hand (so to speak) to conduct meaningful discussions.  The Agency is not required to hold all-encompassing discussions, or to discuss every aspect of a proposal that receives less than the maximum score.  The Agency also need not advise of minor or insignificant weaknesses, even if those weaknesses are later used to differentiate between closely ranked offers.

Federal Acquisition Regulation (FAR) 15.306 is a good beginning resource for learning more about the Agency’s requirements during discussions.

As I mentioned above, discussions tend to be a fertile ground for bid protests because of the ample opportunity for disparate treatment between offerors – intentionally or otherwise.  Understanding the how the Agency should conduct discussions opens the door to potentially winning bid protest arguments.

For example, in a recent decision, GAO sustained a protest alleging that the Agency failed to conduct meaningful discussions.  Specifically, the protester argued the Agency did not do enough to shed light on how certain solicitation requirements would be applied during the evaluation process.

GAO agreed with the protester and even took it one step further – concluding that not only were the discussions not meaningful, they actually mislead the offeror.  That is, the Agency’s discussions led the offeror to believe that it needed to amplify certain past performance experience included in its proposal when, in fact, the Agency did not consider that experience relevant to begin with.

Today’s takeaway is that contractors disappointed with an award decision should take a long look at the way the Agency conducted discussions before walking away.  If there is a legitimate question as to whether the discussions were conducted in a fair and meaningful way, it could form a strong basis for a bid protest.

Two pieces of advice I often provide to government contractors are:

1.When responding to a solicitation, give the government precisely what it asks for – right down to the letter.  This includes providing the information in the correct section of your proposal.  The agency will not play hide-and-seek; and

2.  If you think there is something askew with a procurement or award decision – act fast.  There are lots of different deadlines enforced by GAO, but they all come and go very quickly.  A contractor typically must act within 10 days of when it knows (or should have known) of a protestable issue.  An even shorter timeline (5 days) applies in order to obtain an often essential stay of contract award and/or performance.

These concepts converge when it comes to bid protests related to defective solicitation terms.  GAO Bid Protest Rule 21.2(a)(1) states that a protest alleging improprieties or errors on a solicitation that are apparent on the face of the solicitation must be filed prior to bid opening or the closing date for the receipt of initial proposals.

In other words, a contractor cannot adopt a wait-and-see approach.  The protest must be filed before the contractor submits its bid or proposal.

In a recent GAO decision, a contractor gambled on waiting and ultimately lost the protest and a chance at the contract award.  The procurement at issue involved an Army contract for LED lighting.  The protester believed that its proposal was lower-priced that the awardee’s proposal and exceeded the solicitation requirements.

The Army rejected the protester’s proposal as non-responsive.  The solicitation included three categories of lights.  CLINS 1 and 2 required “type two” LED lights while CLIN 3 required “type three.”  All lights were also required to have a minimum glare rating of “two.”  According to the agency, the protester’s proposal included “type three” lights for all CLINS and a glare rating of “three.”

The protester did not dispute that its proposal differed from the solicitation requirements, but argued that the requirements were unclear and unreasonably restrictive.  With ever getting to the merits of these arguments, GAO denied the protest as an untimely challenge to the solicitation:   “To the extent that the protester now argues that it was unreasonable for the agency to have a minimum requirement for the type of light to be procured, or that the [solicitation’s] technical specifications were unclear, these arguments allege improprieties in the solicitation that, in order to be timely, were required to be raised prior to the closing time for receipt of quotations.  Accordingly, these allegations are untimely and will not be considered.”

At the end of the day, it did not matter whether (or not) the LED lights offered by the proposal were “better.”  The contractor did not follow the solicitation to the letter and lost as a result.

The lesson here for contractors is an easy one.  Address any solicitation uncertainties early and to your complete satisfaction.  Most issues can be addressed through Q&A or other pre-bid closing communications.  If problems are resolved, proceed and comply with the solicitation as-written.  If a defect remains even after your best efforts, the only solution is a bid protest filed before the closing date for proposals.

It seems that when we discuss GAO bid protests, we most often refer to the post-award variety.  Your company lost a contract award due to a procurement error by the agency (like the failure to adhere to the RFP requirements or properly evaluate proposals) – and the fight is on to win it back.

However, Federal contractors have another effective tool at their disposal – the pre-award protest.

A pre-award protest is based on alleged improprieties in the RFP that are apparent prior to the time set for receipt of initial proposals (or, in the case of an IFB, bid opening).  If a firm detects a solicitation defect while preparing its proposal, a protest concerning that defect must be filed before the deadline set by the agency for the submission of proposals.

Pre-award protests are important for a number of reasons.  First, they are waived if not timely raised.  That is, if your firm loses out on a contract, you cannot turn back the clock to challenge an unclear RFP term.  That ship has sailed.  Second, pre-award protests can an essential part of your firm’s proposal preparation process.  By clarifying the RFP upfront, you can set your firm up to be in the best position to win the award later down the line.

A recent GAO decision presents a great example of the effective use of a pre-award protest.  The protest concerns an RFP issued by the U.S. Department of Agriculture for large air tanker services for wild land firefighting.

After reviewing the solicitation, one potential offeror filed a pre-award protest arguing that the agency’s restriction on retardant tank sizes (no larger than 5,000 gallons) was unduly restrictive.   The protester argued that the restriction unnecessarily excludes larger tanker fleets and is not grounded in a reasonable basis (i.e., not related to the agency’s actual needs).

In responding to the protest, the agency argued that larger tankers are not suitable for a number of technical reasons related to the logistics of coordinating and operating firefighting missions.  The contractor disagreed – and proceeded to poke holes in the agency’s logic with facts and statistics related to (among other things) airfield weight limits, dimensions, and locations.

GAO sustained the protest and directed the agency to go back to the drawing board to reassess its actual needs.  GAO’s decision is less about firefighting management and more an indictment of the agency’s lack of logical planning related to logistics of the tanker size limitation.

By filing the protest, the potential offeror (whose fleet of tankers all exceed the size restriction) not only clarified the RFP, but also opened itself up to a potentially new contracting opportunity.  Federal contractors should be mindful of the potential upside of pre-award protests – even with respect to procurements where your firm starts on the outside looking in.

 

The most common basis to establish timeliness for a Government Accountability Office (GAO) bid protest is found in Section 21.2 of the GAO’s regulations.  Under the regulation, the protester must file the protest “not later than 10 days after the basis of protest is known or should have been known”.

Important Disclaimer:  There are plenty of other events that can trigger the running of a GAO bid protest filing deadline.  Please feel free to reach out to me directly if you need guidance in this area.

In a recent decision, GAO placed a hard emphasis on the “should have known” element of the regulation.  The case involved a protest over the Department of Veterans Affairs’ award of a contract for construction services.  Among other things, the protest alleged that the agency improperly relied on a Small Business Administration (SBA) Certificate of Competency (COC) finding the awardee responsible for the procurement.

On review, GAO dismissed the entire protest as untimely.  Specifically, GAO determined that the clock on the protest started to run when the protester received a letter from the agency stating its award decision (and also indicating reliance on the SBA’s COC).  Because the filing was not made within 10 days of that “should have known date,” the window to protest closed.

Of note, GAO specifically rejected the protester’s argument that its time to file a protest should be expanded based on its lack of knowledge concerning the COC program.  According to the protester, it did not understand the purpose/process of the program and sought clarification from the agency.  Ultimately, it took until several weeks after the agency’s award letter for the protester to gain a sufficient comfort level to file the protest.

The protester’s delay argument failed because the SBA’s COC program is detailed in both the Federal Acquisition Regulation and the SBA’s own regulations – i.e., publicly available sources.  Accordingly, GAO found that there was no basis to extend the applicable 10-day deadline for filing.

For federal contractors contemplating a bid protest at GAO – this case demonstrates that the time for contemplation is very short.  Any information giving rise to knowledge of a potential protest basis must be treated as potential triggering event.  If a stay of award or performance is needed, the time to file could be even shorter (as little as 4 calendar days).

The only option to preserve the important rights vested in the GAO bid protest process is to act fast and stay out in front of these deadlines.

In a recent post, I discussed new legislation that could signal an uptick in Best Value procurements for complex service-based contracts.  In the view of many (including me), more Best Value RFPs is a win/win for both contractors and the government.

As a quick refresher, Best Value procurements utilize a Best Value Tradeoff Analysis, which gives the agency the ability to weigh proposal costs and benefits and award the contract to the offeror that will provide the “best value” to government – even if that comes at a higher price than another acceptable offer.  By contrast, Lowest-Price Technically-Acceptable (LPTA) awards can be challenging on complex service-based contracts, where skilled performance is often not suited to a lean or even shoestring budget.

Contractors bidding on Best Value procurements need to think strategically and be mindful of both price and technical excellence.  Having the lower price or exceeding the RFP requirements – independently or even in tandem – may not be enough.  A recent GAO decision highlights how mastering the interplay of these two factor is the key to sustained Best Value success.

The protest concerns the Department of the Interior’s decision to award an FSS task order to a higher-priced offeror on a Best Value basis.  GAO denied the protest, finding that the agency reasonably documented the relative strengths of the proposals and weighed them against the quoted prices.

Digging deeper into the protest, the protester argued that the agency did not reasonably take into account the qualifications and experience of its proposed personnel – noting that its proposal exceeded the RFP requirements in a variety of ways.  In response, the agency noted that it did, in fact, give the protester credit for its solid experience, including assigning a “high confidence” rating to its past performance proposal.

However, for a Best Value award – meeting or (in this case) even vastly exceeding the RFP requirements in one area is often not enough.  The agency performed a detailed review of the offerors’ strengths and compared them in the context of their respective prices.  Based on this proper tradeoff analysis (according to GAO), the agency found the higher priced offer provided better value to the government and made the award.

GAO’s decision offers an important lesson to government contractors competing Best Value procurements – don’t get complacent!  Unlike LPTA procurements (where the RFP sets the bar), RFP requirements should not be viewed as anything other than the baseline.  Contractors should parse those requirements for areas where it can add value and then highlight all of those betterments in its proposal.

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.