Bias And Bid Protests: GAO Rejects Gender Bias Allegation

A woman-owned firm’s introduction of generalized evidence of discrimination against women in the fields of architecture and engineering was insufficient to demonstrate that the Navy discriminated against the woman-owned business with respect to a particular federal opportunity.

A recent GAO bid protest decision highlights how difficult it is to successfully demonstrate bias by government officials–even in a case where statistical evidence suggests that bias may be prevalent in a specific industry.

GAO’s decision in AMEL Technologies, Inc., B-412611 (Apr. 1, 2016) involved a Navy solicitation for architect/engineering services.  The solicitation was set aside for small businesses and conducted under the Brooks Act provisions of FAR 36.6.

AMEL Technologies, Inc., a woman-owned business, submitted a bid.  After reviewing initial bids, the Navy invited the three most highly qualified bidders–including AMEL–to interview and discuss their qualifications.  Following interview and additional evaluation, the Navy informed AMEL that it had not been selected as the most qualified A/E bidder.

AMEL filed a bid protest with the GAO.  AMEL argued, in part, that the Navy’s evaluation reflected bias against AMEL because it was woman-owned.  In support of its contention, AMEL submitted several reports and academic papers indicating that women are discriminated against in scientific fields such as architecture and engineering.

The GAO wrote that “[g]overnment officials are presumed to act in good faith, and we will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition . . ..”  For that reason, “where a protester alleges bias, it must not only provide credible evidence clearly demonstrating bias against the protester or in favor of the successful firm, but must also show that this bias translated into action that unfairly affected the protester’s competitive position.”

In this case, the GAO held, “[w]hile we have no basis to dispute AMEL’s assertion that women may be discriminated in the fields of architecture and engineering, the record here contains no evidence of wrongdoing or bad faith, and the mere assertion of bias by a disappointed A/E firm does not establish bias.”  GAO denied AMEL’s protest.

Unsuccessful offerors often suspect that the evaluation results were motivated by bias–either of the sort alleged by AMEL or (perhaps more often) bias in favor of a successful incumbent.  But, as the AMEL Technologies case demonstrates, it is very difficult to successfully prove bias in the context of a bid protest.  Without a clear “smoking gun,” the GAO is likely to reject the allegation.  In my view, a protester considering filing a bias claim would be wise to weigh the chances of success against the risks of angering a potential customer with allegations that might be construed as personal attacks on the character of the evaluators.