GAO Bid Protests: Five Common Mistakes

Those who follow SmallGovCon regularly know that I read a lot of GAO bid protest decisions (and often comment on them here).  Reading the decisions—and working on many GAO protests for clients—I see some of the same mistakes repeated over and over.

These common mistakes can, and do, cost a government contractor a shot at a successful GAO protest.  So here, in no particular order, are my top five common GAO bid protest mistakes.

1.         Challenging the Solicitation’s Terms Post-Award

GAO bid protests are subject to a number of strict timeliness rules, and none of those timeliness rules seems to doom more bid protests than the rule regarding challenges to the terms of the solicitation.  Simply put, a GAO protest challenging an alleged impropriety in the solicitation generally must be filed before bid opening (for sealed bid acquisitions) or the time set for receipt of initial proposals (for negotiated procurements).

Contractors frequently do not realize that this rule exists, and wait until after award to challenge a mistake, ambiguity or other problem in the solicitation.  Unless the GAO believes that the problem in the solicitation was latent (that is, the contractor wouldn’t reasonably have known about it until after award), the GAO will dismiss the protest as untimely.

2.         Protesting Small Business Eligibility

The GAO lacks jurisdiction to decide whether an offeror on a procurement set-aside for small businesses is actually a small business.  As the GAO wrote in Tiger Enterprises, Inc., B-403475.2 (Feb. 15, 2011) “the Small Business Act gives the Small Business Administration (SBA) not our Office, the conclusive authority to determine matters of small business size status for federal procurements.  We therefore will not review a protester’s challenge to another company’s size status, nor will we review a decision by the SBA that a company is, or is not, a small business for purposes of federal procurements.”

Even though the GAO lacks authority to determine small business eligibility, many contractors (like the one in the Tiger Enterprises decision) do not realize this and file such protests anyway.  Not only will the GAO dismiss size protest allegations, but by the time it does, the five business day window for filing a size protest with the SBA will likely have expired.

3.         Not Hiring a GAO Protest Attorney

I know, I know.  Feel free to take this one with a grain of salt, since, as a GAO protest attorney, I am obviously biased.  But hear me out.

In my opinion, if you believe that an evaluation mistake cost you a contract, you owe it to yourself to get professional help to remedy the situation.  Having read a number of protests written by contractors themselves—even those with a very thorough knowledge of the FAR—I have yet to see one I felt came close to the type of professional quality one would obtain from a good GAO bid protest lawyer.  In some cases, I have seen so-called “pro se” protesters miss the boat when it comes to  GAO technical requirements (like the timeliness rules) or ignore an argument that might have won them the case—had they only been familiar enough with GAO’s precedent to identify and make the claim.

To make matters worse, filing a GAO protest without an attorney can tie your hands when it comes to the scope of your case.  An outside GAO protest attorney is generally entitled to view source selection documents and other confidential information (such as your competitor’s proposals) under a GAO protective order.  You, as a government contractor, cannot see these types of documents.  As you would expect, source selection documents can be critical in proving the merits of a GAO protest, or may reveal additional bases for a supplemental protest.  Without a GAO protest attorney, you lose your ability to use these documents to make your case.

Sure, it’s tempting to save a few bucks by writing your own GAO bid protest, but in my opinion, that’s a pennywise and pound-foolish approach.  Plus, if you win the bid protest, you may be able to recover your attorneys’ fees (see #4 below).

4.         Failing to Record Bid Protest Costs

Contractors often do not realize that they may be entitled to recover their costs if they win a GAO bid protest—not just their attorneys’ fees, but internal protest-related costs, as well (such as time spent going over the case with a GAO protest attorney, reviewing drafts of the written protest, and so on).  But here’s the catch: to be recoverable, the costs need to be appropriately documented, and that’s where contractors (and occasionally, their attorneys) can run into problems.

As the GAO stated in GAO Protest of DTV Transition Group, Inc.—Costs, B-401466.2 (April 7, 2010), “at a minimum, claims for reimbursement must identify and support the amounts claimed for each individual expense (including cost data to support the calculation of claimed hourly rates for employees, the purpose for which each expense was incurred, and how the expense relates to the claim.”)  Without appropriate documentation, the GAO will deny a claim for costs—as happened in the DTV Transition Group bid protest and many other cases.

So, the minute you get started on a GAO bid protest, begin keeping detailed records of the time spent by your employees working on it.  And, though most attorneys already keep detailed billing records, make sure your GAO protest attorney understands the importance of carefully detailing the costs incurred on your protest, including by separately identifying time spent on different arguments, if you protest on several grounds (sometimes, the GAO will allow the recovery of costs only for successful arguments).

5.         Alleging Agency Bias

I discussed this at greater length in a prior post, but it’s worth repeating: alleging bias on the part of procuring agency officials is almost never a winning GAO protest argument.  The GAO follows a strong presumption that agency officials act in good faith and are not biased one way or another when it comes to procurements.  Even if your gut is screaming that the agency was biased against you, unless you have a smoking gun to produce as evidence, an allegation of bias is almost certain to be denied by the GAO—and won’t win you any friends at the agency, either.

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