GAO recently awarded the reasonable costs of filing and pursuing a protest to an agency’s evaluation and award decision, after finding that the agency unduly delayed corrective action in response to a clearly meritorious protest.
Let’s take a look.
GAO sustained a protest recently where the agency seemed to think that a reasonable cost was also a realistic cost.
That is not necessarily so.
While GAO regulations allow GAO to recommend an agency reimburse a protester’s costs if the agency takes corrective action, recouping costs can still be an uphill battle.
In AeroSage, LLC, B-416381.6 (Comp. Gen. Mar. 13, 2019), decided before GAO last week, a protester requested $26,450 in costs, but was only reimbursed its initial filing fee, approximately 1 % of that amount.
One GAO protester is starting to feel like Bill Murray’s character from Groundhog Day, and not in a good way. In a recent series of protests, a contractor challenged the terms of various solicitations as unduly restrictive of competition. These protests resulted in successive corrective actions.
Growing weary of continually protesting the same issue without tangible resolution, the protester finally requested GAO recommended it be reimbursed for its costs. Unfortunately for the protester, GAO had less sympathy for its situation.
When pursuing a bid protest before the Government Accountability Office, it is never a good idea to presume that you’ll get your attorneys’ fees paid by the agency.
If you are fortunate enough to recover attorneys’ fees, GAO’s general standard is to recommend paying the fees associated with all the protest grounds being pursued, whether or not they were meritorious. But although this is the general posture, it is not always the case.
The 2018 National Defense Authorization Act put a new twist on potential costs a contractor may incur in filing a GAO bid protest.
While many federal contractors are familiar with the costs arising from a GAO protest, including their attorneys’ fees and consultant and expert witness fees, and some are lucky enough to recoup such costs upon GAO’s sustainment of a protest, under the 2018 NDAA, some large DoD contractors may also be required to reimburse DoD for costs incurred in defending protests denied by GAO.
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.