Category Archives: GAO Bid Protests

GAO bid protest decisions, commentary on GAO bid protest regulations, and related topics.

GAO: Multiple Contracts With Single Agency May Increase Conflict Risk

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As federal contractors begin to become engaged in multiple programs for a particular agency, the potential for the firm to encounter a situation where it finds itself involved in an organizational conflict of interest (OCI) may increase. This is particularly true with respect to “impaired objectivity” OCI, which is when a firm’s ability to render impartial advice to the government is or might be undermined by the firm’s competing interests. These OCIs often arise in service contracts where the contractor is placed in a position of evaluating its own performance on other contracts.  

In a recent case, GAO found that an agency’s award of a contract created an impermissible impaired objectivity OCI for a contractor from two different perspectives for services that the contractor provided in the capacity as both a prime and subcontractor for an agency. The case is Steel Point Solutions, LLC B-419709,B-419709.2 (July 07, 2021).

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GAO: Non-Procurement Regulations No Grounds for Protest

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The grounds for GAO protests are numerous, ranging from vague terms in a solicitation to showing that an awardee’s proposal lacked needed information. However, they are not unlimited. One protester argued that the terms of a solicitation were inconsistent with regulations concerning mortgage insurance. Unfortunately for them, that isn’t something GAO will consider.

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GAO’s Alternative Dispute Resolution Conference – Too Little, Too Late

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The costs of filing a bid protest can dissuade some protesters from submitting bid protests. One silver lining for protesters is a recommendation for reimbursement of costs upon a sustained decision. However, even when GAO says a protest is “clearly meritorious”, the protest may still be dismissed prior to GAO issuing a decision.

What happens when an agency takes corrective action in the face of a likely sustained GAO decision? One protester recently found out.

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GAO: Agency Has Discretion on Type of Socioeconomic Set-Aside for Procurement

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From a recent GAO decision it appears that the ends can, in fact, justify the means; at least when it comes procurement set-asides for HUBZone companies. The decision is Foxhole Technology, Inc. B-419577 (May 12, 2021). In this matter, Foxhole Technology, Inc., a service-disabled veteran-owned small business, protested the Department of Education’s decision to set aside an RFQ to supply cybersecurity services for HUBZone businesses. In its protest, Foxhole argued that the agency’s decision to set aside the procurement for HUBZone small business concerns was based on inadequate market research and was therefore not justified. GAO denied the protest.

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GAO: A Higher Past Performance Rating For One Offeror Does Not Mean a Competitor Was Penalized

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It seems like it should go without saying, but, just because an offeror with better evaluation ratings is preferred over one with neutral ratings does not mean the latter offeror was penalized for having neutral ratings, or that the neutral rating was a penalty. Nonetheless, in a recent bid protest a company creatively argued that it was penalized for having neutral ratings, and GAO unsurprisingly rejected it.

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Inadvertent Release of Incumbent Pricing Data Leads to Sustained Protest

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Protecting sensitive business information, especially pricing, is essential even in the GAO bid protest realm. As an agency found out, even an inadvertent release of such information could lead to a sustained protest.

This slip up resulted in the cancellation of a nearly $1 billion contract. Needless to say, this was a big deal. How did this happen, and what should parties be looking for to protect their confidential data?

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GAO: Protestors Must Show Intervening Offerors Would Not be in Line for Award to be Interested Party

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In order to have a bid protest sustained, a protestor must have a reasonable chance of being awarded the contract if the protest succeeded. Often, this just means that the protestor’s own proposal must be acceptable to the awarding agency in the first place. What many contractors do not know, however, is that if intervening offerors would be in line for the award even if the protest was sustained, the protestor will not be considered an interested party by the GAO.

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