Getting Off the Well-Worn GAO Protest Path
Submitting a proposal in response to a government solicitation often is the culmination of months — or years — of painstaking preparation.
So, when an offeror receives notice that the contract has been awarded to someone else, the first instinct is to think “but our proposal was the best!” The disappointed offeror stands ready to file a protest to show the adjudicators at the Government Accountability Office — and the world — just how outstanding their proposal really was.
And, of course, once they demonstrate all the impressive features of the proposal, the strengths and innovations that the contracting agency clearly missed, it only follows that GAO will decree the agency’s evaluation was fundamentally flawed.
These type of protests, arguing that an evaluation was unreasonable because the agency just failed to appreciate the proposal benefits, are the most common protests adjudicated by GAO.
Ask any protest practitioner what happens next, and he or she will describe a well-worn path. The agency will remind GAO that the contracting activity has the discretion to decide which proposal best meets its needs — thousands of GAO decisions support this proposition — and, in this instance, the awardee offered the best solution. The intervenor will cry “sour grapes!” and hammer home that the protester just disagrees with the decision. And the denial will be swift, a public reminder that the agency just wasn’t that into you.
Avoiding the common “mere disagreement” deny should be the goal of every disappointed protester, but the path is often full of traps for the unwary.
Here are five tips to emerge victorious in your bid protest: First, take advantage of the debriefing to ask questions. If you are participating in a Defense Department procurement, the enhanced debriefing requires the government to provide you with a redacted source selection decision, as well as an opportunity to ask questions. But even if your procurement is with a civilian agency, use the Federal Acquisition Regulation (FAR) 15.506 hook to request “reasonable responses” to relevant questions — and for the debriefing to only close after you receive answers. In that scenario, you may receive answers.
In preparing for a debriefing and any follow-on questions, it is wise to coordinate with outside counsel to carefully craft a strategy to elicit useful information if a protest remains an option.
Second, recognize that the initial protest filing is often about getting access to the record. Under GAO’s rigid document production standards, an agency only needs to file documents responsive to the challenges raised by the protester; challenging a limited scope of the procurement is likely to result in a limited record. If the debriefing leaves a company without an obvious protest issue to focus on, file cognizable challenges across a broad array of areas of the evaluation. The strategy will require the agency to submit an expansive agency report to address your concerns, which will give your outside counsel the best chance of finding the evaluation infirmities that are only discoverable once “under the hood.”
Remember, there is no shame in subsequently withdrawing protest grounds, and protests are often won on the basis of supplemental filings.
Third, be as specific as possible in the protest. Instead of speaking in generalities about your strong proposal, get granular to highlight the most impressive features that distinguish it from the competition, and tie these features to the solicitation requirements. Rebut weaknesses with specific examples and language from your proposal.
Even better if this exercise is an objective comparison. For weaknesses that do not correlate to the solicitation requirements, challenge any without a “clear nexus” to require the agency to defend its assignment of the weakness.
Next, if the agency conducted discussions during the competition, scrutinize every exchange. Pay close attention to what areas of the proposal the agency identified as weaknesses, significant weaknesses and deficiencies. Compare those to any concerns identified in the debriefing. This can be a fruitful area for challenging that the discussions were not meaningful, or perhaps were misleading if the agency did not lead you to your proposal areas that required enhancement.
And last, leverage your competitive intelligence. Companies often spend significant time and effort engaged in “red team” exercises to divine what other offerors will be proposing. Use this information to discuss your expectations of the awardee’s proposal and the weaknesses that likely should have been assigned.
Whether the company has a known product that does not meet the contract specifications, key personnel without the requisite qualifications, or limited past performance that comes short of the solicitation criteria, protesting inadequacies with the awardee’s proposal is the best chance to actually receive their proposal.
At that point, your outside counsel will be able to scrutinize and compare the proposals and associated evaluations. This effort will uncover any discrepancies or unequal evaluation, such as places where the awardee’s proposal earned a strength for a feature very similar to what you proposed, or material requirements that the agency improperly waived in its evaluation.
Winning a “mere disagreement” protest is never easy, but following the above tactics will put disappointed offerors in the best possible position for receiving prompt corrective action or the elusive GAO sustain on the merits.
Carla Weiss is a special counsel in Jenner & Block’s government contracts practice group, where she has successfully prosecuted and defended numerous bid protests on behalf of large and small companies.