Despite Your Interest in a Protest, GAO Might Not Think You’re an “Interested Party”

Let’s suppose that you just received a new solicitation hot off the press. As you peruse it, you find a requirement that you believe is too onerous or unnecessary. So you contemplate filing a GAO protest to challenge that term. Before doing so, be sure that you’re an “interested party” under GAO’s regulations. Well, I filed a protest, you say, doesn’t that ipso facto make me an interested party? Short answer: no.

In a pre-award protest context, it’s important to bear this principle in mind: “A protester is not an interested party to challenge the terms of a solicitation, even if the protest is sustained, if it is clear that the protester will be ineligible for award under the remaining terms of the solicitation.”

This was the guiding principle in a recent GAO case: DGCI Corp., B-418494 (Comp. Gen. Apr. 27, 2020). In that procurement, the Navy was looking for a contractor to build a fleet maintenance facility at Naval Air Station Sigonella in Sicily, Italy. The solicitation required bidders to be certified by the Societa Organismi d’Attestazione (SAO)–a certification required by Italian law for bidders which compete for public works projects. The solicitation also required bidders to have Department of Defense facility security clearance and “the capability to safeguard documents classified for purposes of national security as secret.”

Before phase one proposals were due, DGCI challenged the SOA certification requirement. In its view, this requirement was unreasonable because SOA certification is only required for Italian companies, not United States firms (the solicitation was limited to companies with Americans holding a secret security clearance) operating under a U.S. Government contract. According to DGCI, this was the first time that the Navy had required a prime contractor to possess SOA certification; evidently, the Navy typically accepted SOA certifications held by Italian subcontractors.

In response to the protest, the Navy argued that DGCI was not an interested party. Why? Because the record showed that DGCI did not have the capability to safeguard documents marked as secret, and DGCI had not challenged that solicitation term. For its part, DGCI admitted that it did not currently have the capability to safeguard secret documents. But it argued that because it would have obtained this capability in phase two of the competition, it was an interested party to challenge the solicitation’s terms.

GAO disagreed because even if it sustained the protest, DGCI would still not have been eligible to bid on the solicitation:

DGCI has not challenged the solicitation’s requirement that an offeror must possess the capability to safeguard documents marked as secret, and concedes that it does not have such capability. . . . The record also demonstrates that DGCI failed to submit the required documentation establishing its capability to safeguard documents marked as secret by the February 20 date established by the RFP for submission of this documentation. Thus, DGCI is not eligible to compete for award under the terms of this RFP, even if the agency amended the solicitation in a manner that addressed the protester’s allegations concerning SOA certification[.] Accordingly, because DGCI could not be eligible for contract award even if its protest were sustained, and has not otherwise protested the terms of the RFP which make it ineligible for award, DGCI is not an interested party for the purposes of this protest.

Before initiating a pre-award protest, think through your interested party status. If GAO sustains your protest, would you still be eligible for award? In other words, can you show that you can and would fulfill every other requirement beyond the ones you’re challenging? If so, then you should satisfy this threshold requirement.