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.

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.

 

The Government Accountability Office (GAO) is establishing a new system for filing bid protests – the Electronic Protest Docketing System (EPDS).  GAO promises that the new system will be both “secure” and “easy-to-use.”

This week, GAO rolled out a new set of instructions that offers greater insight into the new e-filing process.

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The instructions include definitions of key terms, details on eligibility for bid protest filers, and some logistical information on how protests will be filed and processed under the new EDPS system.

GAO still has not provided a firm date from when EPDS will go live.  When a start date is set, will the change to EPDS be earth-shattering? No.  GAO bid protests will still be subject to the same rules concerning content, standing, and timeliness (among other things).

One new EPDS feature sure to garner more attention as the roll out continues is the new $350.00 filing fee.  Currently, filing bid protests is free.  GAO says that the new fee is included in order to offset the cost of the EPDS system.

The filing fee is new, but should not affect a contractor’s strategy for pursuing a protest at the GAO.  As we’ve covered in detail before, the GAO is the ideal forum for protesting straight-forward agency errors that can – at least in theory – be resolved quickly in the GAO’s streamlined environment.  Protests involving more complicated legal questions are better suited for resolution at the Court of Federal Claims.

For more on the pros and cons of protests at the GAO, check out my Government Contracts 101 guide.