GAO bid protests sometimes involve allegations that a particular contracting officer and/or other government personnel were biased against the protester.
However, as a recent GAO bid protest decision demonstrates, without “convincing proof,” which can be very difficult to obtain, the GAO will not sustain a protest allegation of bias or bad faith on the part of government employees. In other words, without a “smoking gun,” making an allegation of bias or bad faith may simply be a waste of time.
The SBA failed to properly evaluate the 8(a) Program application of a small business owned by a disabled individual, according to a recent decision of the SBA Office of Hearings and Appeals.
SBA OHA’s decision in Striker Electric, SBA No. BDPE-465 (2013) comes on the heels of a December 2012 case in which SBA OHA held that the SBA had improperly evaluated the 8(a) Program application of a woman-owned business. Together, the two decisions may suggest that SBA OHA is holding the SBA to a higher standard than may previously have been the case when it comes to the SBA’s evaluation of the “social disadvantage” factor. If so, it is good news indeed for 8(a) applicants.
Is it a conflict of interest for a contractor’s former employee to evaluate his old firm’s competitive proposal? Not necessarily, according to the GAO.
In a recent GAO bid protest decision, the agency’s technical evaluation board included a member who had previously worked for the winning offeror. As one might expect, this did not sit particularly well with one of the awardee’s competitors, which filed a GAO bid protest. The GAO’s ruling: there was no conflict of interest.
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.