Presumptive Awardee Ineligible to Challenge Solicitation Terms, Says GAO

If you’re a winner under a solicitation, you can’t challenge the ground rules under which you won–at least under the facts of a recent GAO bid protest decision.

In that decision, GAO concluded that the protestor of a solicitation’s terms lacked standing when the protester was subsequently identified as an awardee under the solicitation. Continue reading

Unverified SDVOSB JV Partner Couldn’t Protest VA Set-Aside Solicitation

A non-SDVOSB company couldn’t protest the terms of a VA SDVOSB set-aside solicitation, despite entering into a joint venture agreement with an SDVOSB–because the joint venture hadn’t started the process of becoming verified by the VA.

In a recent bid protest decision, GAO held that because neither the protester nor the joint venture was included in the VIP database, or likely to be included during the protest process, the protester wasn’t an “interested party” under the GAO’s bid protest regulations.

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Joint Ventures And GAO Protests: Protester Must Have “Standing”

For a member of a joint venture to file a GAO bid protest on behalf of the joint venture, the member must have the authority to do so.  If a JV Member’s authority to act is in question, the GAO will dismiss the protest for lack of standing.

In a recent decision, the GAO dismissed a bid protest filed by a joint venture member because the other joint venture member disputed the protester’s right to act on the joint venture’s behalf.

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Is It Time To Rethink The GAO’s Prejudice Requirement?

Under the GAO’s bid protest regulations, only an “interested party” may file a bid protest.  Over the years, GAO case law has established that a protester is not an “interested party” if the protester would not have had a reasonable chance of receiving award, but for the agency’s actions.

Under most circumstances, the “no harm no foul” prejudice rule makes sense.  After all, if a protester scored lower than the awardee on, say, all five technical factors, and had a higher price, should the agency really have to start from scratch if it made a minor error?  The rule generally helps weed out frivolous protests and keep the competitive procurement system functioning smoothly.  But occasionally the rule can lead to seemingly unfair and anticompetitive results, as happened in GAO Protest of Gas Turbine Engines, Inc., B-401868.2 (Dec. 14, 2009).

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