GAO: If You Weren’t Prejudiced, We Won’t Sustain Your Protest

Much like schoolyard basketball, bid protests feature a “no harm, no foul” rule: unless an offeror can credibly allege that it was prejudiced by a flawed evaluation, GAO won’t sustain a protest.

Establishing prejudice can be tricky, depending on the type of evaluation at issue. Under a lowest-price technically acceptable award, a protester generally must show that it was next-in-line for the award (that is, it was technically acceptable and had the next-lowest price, after the awardee). Best value awards, on the other hand, are a bit more flexible: usually, the protester must establish that the evaluation flaw adversely affected its competitive standing.

A recent GAO decision, however, highlights that these two means of establishing prejudice aren’t always distinct.

The facts of this recent decision—Panum Telcom, LLC, B-418202 (Jan. 17, 2020)—are relatively straightforward. Panum protested the award of a task order under the OASIS contract to Integral Consulting Services, alleging that the agency failed to properly evaluate Integral’s staffing plan. Panum, however, was evaluated less favorably than was Integral. Integral received a better rating under the technical factor (superior versus Panum’s satisfactory) and was priced significantly less than Panum (by about $13 million).

In its briefing on Panum’s protest, Integral moved to dismiss, alleging that Panum was not in line for the award. Even though the award was made on a best value basis, Integral argued that there was an intervening offeror that also earned higher scores and was less expensive than was Panum, meaning that Panum wasn’t prejudiced.

GAO agreed with Integral and dismissed Panum’s protest. It noted that, even if Panum’s arguments were successful, the intervening offeror was next-in-line for the award:

A protester is an interested party to challenge the evaluation of the awardee’s proposal where there is a reasonable possibility that the protester’s proposal would be in line for the award if the protest were sustained. Where, as here, there is an intervening offeror who would be in line for the award if the protester’s challenge to the award were sustained, the intervening offeror has a greater interest in the procurement than the protester, and we generally consider the protester’s interest to be too remote to qualify as an interested party.

(Citations omitted).

In an effort to save its protest from dismissal, Panum argued that the evaluation of the intervening offeror’s staffing plan was also flawed, as suggested by that offeror’s lower price. GAO rejected this effort as untimely, noting that Panum learned of the intervening offeror’s position in its debriefing and, thus, should have included this allegation in its protest. Because Panum did not, GAO found it untimely.

Panum Telcom is a helpful decision, in that it reminds protesters to timely allege all of the facts relevant relating to their protest—including relating to prejudice and allegations about an intervening offeror. If a protester does not timely establish prejudice, GAO is likely to dismiss the protest.

Beyond that, Panum Telcom shows the value in intervening in a protest as an awardee. Here, Integral raised (successfully) the argument that Panum was not prejudiced by the supposedly flawed evaluation. By intervening, Integral was able to successfully defend its award.

If you have any questions about bid protests, please give me a call.