GAO Bid Protests And Bias Allegations: A Waste Of Time?

GAO bid protests sometimes involve allegations that a particular contracting officer and/or other government personnel were biased against the protester.

However, as a recent GAO bid protest decision demonstrates, without “convincing proof,” which can be very difficult to obtain, the GAO will not sustain a protest allegation of bias or bad faith on the part of government employees.  In other words, without a “smoking gun,” making an allegation of bias or bad faith may simply be a waste of time.

The GAO’s decision in KAES Enterprises, LLC, B-407964.4 (Aug. 21, 2013) involved a Homeland Security solicitation for generator maintenance services.  The solicitation was set-aside for SDVOSBs.

KAES Enterprises, Inc. submitted a proposal.  Eight other firms also submitted proposals.  The DHS subsequently established a competitive range and excluded KAES’s proposal, stating that the proposal suffered from numerous deficiencies.

KAES filed a GAO bid protest challenging its exclusion from the competitive range.  KAES alleged, in part, that the DHS conducted the procurement in bad faith.  KAES argued that the DHS had a “habitual pattern” of favoritism toward a particular contractor and its affiliates, and that the DHS’s conduct of the procurement resulted from a desire to “perpetuate further performance by their most favored contractor.”  KAES also alleged that the DHS was biased against KAES.

The GAO wrote that “[g]overnment officials are presumed to act in good faith, and a protester’s contention that contracting officials are motivated by bias or bad faith thus must be supported by convincing proof.”  The GAO continued, “we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition.”

In this case, the GAO held, “the record does not support KAES’s claims of bad faith or bias.”  The GAO pointed out that the company KAES believed was favored “did not even submit a proposal for the current procurement” and none of its affiliates had been included in the competitive range.   The GAO also wrote that KAES had not provided any hard evidence of bias.  The GAO concluded, “KAES has not provided the convincing proof necessary to support its claims of bias or bad faith . . ..”  The GAO denied KAES’s protest.

The KAES Enterprises decision is one in a long line of GAO bid protest cases denying allegations of bias or bad faith because of a lack of convincing proof.  Contractors considering such a claim should think carefully about whether they have the sort of proof necessary to overcome the presumption that government officials act in good faith.  If not, a claim of government bias or bad faith may simply be a waste of time.

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