For a member of a joint venture to file a GAO bid protest on behalf of the joint venture, the member must have the authority to do so. If a JV Member’s authority to act is in question, the GAO will dismiss the protest for lack of standing.
In a recent decision, the GAO dismissed a bid protest filed by a joint venture member because the other joint venture member disputed the protester’s right to act on the joint venture’s behalf.
If a service-disabled veteran-owned small business has been denied verification for the U.S. Department of Veterans Affairs’ Vendor Information Pages database, it cannot file a bid protest with the GAO challenging the VA’s award decision on a VA SDVOSB set-aside procurement—even if the company has a request for reconsideration pending with the VA’s Center for Veterans Enterprise.
So says the GAO in MICCI Imaging Construction Company, B-405654 (November 28, 2011), a decision in which the GAO held that a company that has been denied verification lacks “standing” to pursue a GAO bid protest of a VA SDVOSB set-aside to a competitor. Translating the legalese, the GAO’s message to non-verified companies is, “don’t waste our time.”
Under the GAO’s bid protest regulations, only an “interested party” may file a bid protest. Over the years, GAO case law has established that a protester is not an “interested party” if the protester would not have had a reasonable chance of receiving award, but for the agency’s actions.
Under most circumstances, the “no harm no foul” prejudice rule makes sense. After all, if a protester scored lower than the awardee on, say, all five technical factors, and had a higher price, should the agency really have to start from scratch if it made a minor error? The rule generally helps weed out frivolous protests and keep the competitive procurement system functioning smoothly. But occasionally the rule can lead to seemingly unfair and anticompetitive results, as happened in Gas Turbine Engines, Inc., B-401868.2 (Dec. 14, 2009).