It’s early October, which means that the federal government’s end-of-fiscal-year contracting binge has drawn to an end. With the spate of contract awards, this time of year typically sees an increase in the number of bid protests being filed, or at least contemplated.
If you’re considering filing a bid protest, here are five (more) things to keep in mind:
1. Debriefings are helpful guides.
The most useful piece of information when considering a bid protest is, unsurprisingly, the agency’s explanation of its evaluation. Sometimes, this will come through a formal debriefing; other times, only through a “brief explanation” of the award.
Regardless, the agency must only provide this information if the offeror timely asks for it. It’s good practice, therefore, to immediately request this information from the contracting officer once she notifies you of the evaluation decision. A quick email to the effect of: “Thank you. We request a debriefing” is usually sufficient.
Note that when the offeror gets the debriefing might affect the protest deadline. In the case where a debriefing is both required and timely requested, the disappointed offeror has ten days from the date of its debriefing to file a GAO protest. If a debriefing isn’t required (or if it’s not timely requested), the protest deadline is ten days from the date the protester knew or should have known of the basis for protest. If you’re not sure whether a debriefing is required under your solicitation, ask the contracting officer (or experienced bid protest counsel).
2. Which arguments are most often successful?
Evaluation decisions are, at some level, subjective. And though GAO will give an agency discretion in making these evaluation decisions, that doesn’t mean that an agency can ignore the solicitation’s requirements or applicable laws or regulations. Understanding how to frame improprieties in the evaluation to cogent legal arguments can take some skill.
Doing so, it’s helpful to understand the arguments upon which GAO most commonly sustains protests. Thankfully, GAO publishes this information annually. In 2018, GAO reported that arguments asserting unreasonable technical and/or price evaluations and flawed selection decisions most commonly led to sustained protest. In years past, arguments alleging misleading discussions and inadequate documentation of the record have also led to sustained protests.
3. Which arguments are least likely to lead to a sustained decision?
Just like knowing the most commonly sustained protest arguments can be helpful, so too can knowing the arguments that are least likely to be sustained. For starters, GAO’s regulations say that it won’t consider arguments challenging issues relating to contract administration (like performance disputes) or small business-related issues, among others.
Sometimes, a contractor might believe that the agency’s bias led to the contractor losing out on the award. Arguments alleging bias, however, are rarely successful—GAO presumes contracting officials to act in good faith, and the protester generally must present compelling evidence showing that such bias exists and impacted the award decision. In other words, bias arguments are very hard to prove.
4. Understand your goal.
A successful bid protest might not lead to a contract award. A successful protest challenging a best value evaluation is likely to lead to the agency reevaluating proposals to correct the evaluation’s flaw. That reevaluation still might lead to the successful protester losing out on the award—but, in some cases, the reevaluation might instead lead to the protester being named the awardee.
5. Implement lessons learned.
Like debriefings, bid protests are a unique opportunity to learn more about the evaluation. Though some of this information might be protected (that is, shielded from disclosure to the offerors), the public documents should nonetheless reveal information about the evaluation.
Understanding how the agency reached its decisions will help an offeror better respond to the next opportunity down the road. Thus, it’s wise to implement a “lessons learned” program following any debriefing or bid protest.
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Bid protests can be quite complex. Understanding whether and how to file a bid protest can be a vital tool, as a successful protest might put you back into consideration for an award.
As with everything else written on SmallGovCon, this post isn’t intended to be (and shouldn’t be considered as) legal advice; instead, discuss your bid protest options with an experienced government contracts lawyer to better understand the ins and outs of the protest process and whether filing a protest makes sense in your particular situation.
Questions about this post? Email us or give us a call at 785-200-8919.
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