In order to protest a procurement at GAO, the protester must be an “interested party.” An interested party is an “actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by the failure to award the contract.”
But does the identity of the protester have to be the same as the offeror under the procurement? GAO recently offered some guidance on that question.
Only an “interested party” can bring a GAO bid protest. This generally means that a protester must be “an actual or prospective bidder or offeror” with a “direct economic interest” in the contract’s award.
You might ask: is there such a thing as an offeror without a direct economic interest in the outcome of the contract award? It can happen–and a novation may be relevant. In a recent case, GAO held that a pending novation meant that the protester didn’t meet the standard necessary to file a protest.
A subsidiary cannot file an SBA size protest on behalf of its parent company.
Last week, I wrote about an SBA Office of Hearings and Appeals case holding that a parent couldn’t file a size appeal on behalf of its subsidiary. Unsurprisingly, it turns out that the same principles apply to initial size protests, too.
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.
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.
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.
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).