A Successful Bid Protest Doesn’t Mean a Second Bite at the Apple

So, the GAO sustained your bid protest? Perhaps surprisingly, a sustained protest doesn’t necessary mean GAO will recommend that the agency cancel the award and re-open the solicitation. You may just walk away with your bid preparation and protest costs.

In Savannah Cleaning Systems, Inc., B 415817.2 (Comp. Gen. Apr. 23, 2018), GAO addressed whether it must recommend a fairly standard remedy—such as, cancelling the award and reissuing the solicitation—when it sustains a bid protest.  Under certain scenarios, the answer is no.

In a previous, related decision, Savannah Cleaning Systems, Inc., B-415817 (Comp. Gen. Mar. 27, 2018), GAO addressed the substance of Savannah Cleaning Systems, Inc.’s bid protest, which arose from an RFQ issued by the Navy, for five pressure washers, under the FSS.  The awardee, Border Construction Specialists, LLC submitted the lowest priced quote but offered an alternative pressure washer.  Savannah’s bid was the second lowest price and offered the brand-name pressure washer.

GAO sustained Savannah’s protest because 1) instead of awarding the contract to BCS, “the agency should have instead amended the requirements of the solicitation when it determined that the pressure washer offered by BCS—which was less powerful with fewer features—was capable of meeting its needs;” and 2) “the pressure washer was not listed on BSC’s schedule contract and the applicable GSA guidance did not allow for the agency to order a different pressure washer than the model listed on a vendor’s schedule contract as an ancillary service.”

But because the Navy had already accepted delivery of the pressure washers from BCS, GAO refused to unwind the award and merely recommended that the agency reimburse Savannah “its quotation preparation costs and its costs for filing and pursuing the protest.”

Unsurprisingly, Savannah requested that GAO modify the remedy in hopes that it might ultimately become the awardee.  But GAO held firm.  It noted that normally, where an agency’s improper actions preclude a protester from competing and the protester had a substantial chance for award, GAO would issue a fairly standard corrective action recommendation: terminating the purchase order and amending the solicitation to reflect the agency’s actual requirements.  But this substantive remedy, according to GAO, is not feasible once an agency accepts delivery of the purchased goods.  So, it must rely on remedies that are procedurally compensatory—i.e., quote preparation and bid protest costs—to acknowledge the protester’s meritorious protest.

This case is a good reminder that a potential protester must consider practicality.  Neither an agency nor GAO wants to unravel a procurement in which the contractor’s performance is essentially complete.  So even when a protest oozes merit, the GAO may only nod approvingly and compensate you for your involvement in the solicitation and protest processes.