GAO Protests and Bias Claims: Fuhgettaboutit

When small government contractors call me about potential GAO bid protests, they sometimes are convinced that the procuring agency was biased against them, or biased in favor of another offeor (in many cases, the incumbent).  Fired up, these clients want to file scathing GAO protests, accusing the source selection officials of improprieties.

It’s my unpleasant job to tell these angry contractors, “unless you have ironclad evidence, I think you should save your money.”  Although allegations of bias are relatively common in GAO protests, in my experience, the GAO almost never sustains a protest on this basis.  In other words, as my friends from the Northeast might say, fuhgettaboutit.

The GAO bid protest decision in Jean-Paul O’Brien, B-405668, B-405669 (Dec. 12, 2011), demonstrates what happens in the vast majority of reported GAO protest decisions alleging bias on the part of procuring officials.  In the Jean-Paul O’Brien case, the protester made an allegation of bias, but the primary supporting evidence was a vague email the protester interpreted as an indication that the results of the competition had been pre-ordained.

The GAO made short work of the bid protest.  Citing longstanding GAO protest precedent, the GAO wrote that “Government officials are presumed to act in good faith and a protester’s claim that contracting officials are motivated by bias or bad faith must be supported by convincing proof.”  The GAO continued, “our Office will not attribute unfair or prejudicial motives to procurement officials on the basis of inference or supposition.”  The GAO found that the protester had not supplied such “convincing” evidence and denied the protest.

The GAO’s decision in the Jean-Paul O’Brien bid protest is typical.  Contractors are almost never able to supply a “smoking gun” to meet the GAO’s requirement for “convincing” proof of bias.  As a result, in my opinion, bias claims are among the least successful grounds of protest before the GAO.

When it comes to GAO bid protests, if a contractors thinks a procuring official may be biased against it, the question isn’t whether you the contractor is right—it’s whether the contractor can convincingly prove it.  If not, my sense is that alleging bias as part of a GAO bid protest is likely to be little more than a waste of time and money.  To make matters worse, crying “bias!” is not exactly a great way of making friends at the procuring agency—an agency you presumably want to do business with in the future.

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