The GAO bid protest process involves more than just the initial protest itself. After the protest is filed, the agency has the opportunity to take so-called “corrective action,” essentially conceding victory to the protester. But if the agency elects to fight the protest, and produces an agency report countering the protester’s arguments, the ball is back in the protester’s court.
The GAO expects a protester to file a detailed response (called “comments” in GAO protest parlance) to the agency report. Fail to file comments, and the GAO will dismiss the protest. But, as demonstrated in the GAO’s decision in Ross Technologies, Inc., B-405266.2 (Dec. 7, 2011), if the comments do not address the arguments in the agency report, it may be no better than not filing them at all.
The Ross Technologies GAO protest involved an Air Force solicitation for network support, integration, and development. After the Air Force awarded the contract to a competitor, Ross Technologies, Inc. filed a GAO bid protest, alleging a number of flaws in the evaluation. The agency filed a detailed agency report, arguing why it believed each of Ross’s contentions lacked merit. The ball shifted back to Ross’s court.
Ross filed comments. Sort of.
According to the GAO, Ross’s response to the agency’s analysis, in its entirety, was that Ross “has previously addressed the merits of these protest grounds in its initial protest, which [Ross] incorporates herein by reference, and respectfully requests that the GAO issue a decision on the current record.”
Ross’s comments didn’t cut it with the GAO. The GAO denied the protest, writing that “given [Ross’s] failure to meaningfully dispute, or even address, the agency’s detailed defense of its evaluation of the protester’s proposal under the challenged criteria, we have no basis to conclude that the agency’s assessment was unreasonable.”
Ross was represented by an experienced (and, I’m guessing, not inexpensive) large law firm, which presumably knew better than to submit such a “one-liner” as its comments if it wanted its client to prevail. Although I have no way of knowing, I wonder whether something was going on behind the scenes between attorney and client—perhaps, for instance, Ross balked at paying its attorneys for the hours necessary to produce detailed comments on the agency report, and everyone just agreed to submit a brief sentence instead. But again, that’s just speculation on my part.
What does the Ross Technologies case (and my speculation) mean for your small business? When you file a GAO bid protest, remember that the initial protest is only the beginning. You should expect to spend as much time and money as you invest in the initial protest—and quite possibly more—on preparing thorough and compelling comments rebutting the agency’s arguments. Budget accordingly.
In addition, keep in mind that once a GAO protest reaches the agency report stage, the GAO will likely require the agency to pay some or all of your attorneys’ fees if you prevail on the merits. If, after receiving the agency report, you no longer believe in the merits of your case, consider withdrawing the bid protest. But if you still believe in the strength of your case, put the pedal to the metal and file strong and comprehensive comments.