For our third entry in our “Why File” series, we will be covering one of the two big bid protest routes, a “pre-award” Government Accountability Office (GAO) bid protest. Most contractors are fairly familiar with GAO bid protests that occur after an agency makes their award decision (more on this in a later “Why File” post). But contractors may be less familiar with pre-award bid protests at GAO. We will cover some of the most common reasons pre-award protests are filed at GAO, based primarily on contracting regulations and bid protest cases. As always, please keep in mind, despite the commonalities discussed below, the question of whether to protest is highly fact-specific and demands careful consideration.
What is a “pre-award” protest?
First, it is important to establish just what a pre-award protest is. The name sort of gives away its meaning, but a pre-award protest is a bid protest filed at some point prior to the award decision. Note that the term pre-award protest is not found in the GAO rules or the FAR, but it is a helpful way to categorize certain types of protests. However, be careful, that does not mean the bid protest filing deadline at GAO is the award decision date. As discussed below, filing for such a protest could be due prior to a bid submission due date, within 10 days of a competitive range decision, or another date which occurs prior to the award decision. It is, as with all things federal contracting, quite fact specific (for more specifics on pre-award protests, check out our entry on them in our Back to Basics series). Pre-award protests can be filed at more tribunals than just GAO, such as the U.S. Court of Federal Claims, but as GAO is more common for contractors to utilize, we will focus here on GAO. That being said, many of the concepts for why a pre-award protest could be filed are universal. With that out of the way, lets discuss some of the reasons a contractor may file a pre-award protest.
1. The solicitation’s terms are unclear.
The most common reason for filing a pre-award protest is that a solicitation’s terms are confusing or don’t make sense. Often contractors will look at a solicitation, interpret a term a certain way, but the agency meant it another way. This can be a fatal flaw to an otherwise superb proposal. To prevent such a thing from occurring, GAO actually provides contractors a way to protest solicitation terms, before finding themselves on the losing end of a proposal due to a misunderstanding.
GAO in its regulations state that “protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals.” So, if a contractor sees contradictory terms, or confusing terms within a solicitation, one way to force the agency to address it, is to file a pre-award protest.
A great example of why such a protest is important is covered in a previous blog here on SmallGovCon. In One Community Auto, LLC, B-419311 (Comp. Gen. Dec. 16, 2020), a contractor–after award decision–raised a concern via post-award protest that the evaluation factors were ambiguous or indefinite. GAO agreed that “the language in the solicitation is internally inconsistent” but because the protest was filed post-award, it was dismissed as untimely. GAO noted that a “protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals or quotations” must be filed prior to the closing time for proposals. It is very important for contractors to raise solicitation terms often and early, or they may face an unfortunate award decision, with no recourse. When facing solicitation term confusion, there are generally two categories these issues fall into:
Overly Restrictive Terms or Terms that Do Not Match Industry Norms:
One category of solicitation terms that will get commonly protested are terms that overly restrict competition, or that are so off base that they don’t match industry norms. A good example of this type of protest at GAO is a recent protest of the CIO-SP4 procurement which we blogged about here. In that protest, the solicitation called for submitting experience, but the amount of experience one could submit varied depending on if they were in a mentor protege relationship or not. This basically overly restricted certain offerors, while giving great leeway to others. Similarly, there can be protests that argue the terms are too restrictive as they don’t meet the subject industry’s norms. This can be a tough protest to win though, as GAO uses a standard of if the agency’s terms were reasonable (we have a blog on this type of case here).
Ambiguous or Inconsistent Terms:
This other category of solicitation terms protests is much more apparent on its face. Often contractors will see terms that contradict other portions of the solicitation (making it impossible to satisfy either term), or that just plain don’t make sense. A great example of this, are the terms from the One Community Auto case discussed earlier. While the case was dismissed as untimely, GAO did state the terms were inconsistent (and presumably would have been a successful pre-award protest). One Community Auto highlighted terms that sometimes felt more appropriate to a lowest-price technically acceptable while others were more fitting of a best-value tradeoff (both separate and distinct evaluation methodologies). This type of solicitation concern and confusion is one that would be raised in a pre-award protest as it presents ambiguities, or inconsistencies.
(PLEASE NOTE: In rare cases, ambiguous solicitation terms can also be protested after award, but this is rarely successful, as the ambiguity of the term must not be apparent at all until after award. GAO often calls this a latent ambiguity)
2. The Agency will not communicate on Solicitation questions.
This reason for filing is sort of an extension or outgrowth of reason #1. However, it is a little different than protesting strictly on solicitation terms. Often solicitations will have the ability for Q&As with the agency. Or offerors will reach out to the agency with questions on their own, as there is no restriction on contacting the agency with questions on a solicitation. Sometimes, these Q&As or communications can contain great information for contractors, or resolve solicitation term issues that would have necessitated a pre-award protest. Unfortunately, this is not always the case. Occasionally agencies are not very communicative or responsive to questions. Their responses may be rather lacking, only lend to more confusion, or the agency may not respond at all. This lack of communication leads to more ambiguities with solicitation terms, contradictions with solicitation terms, and confusion among contractors. Contractors may find that the best way to get the response they are looking for, or any formal response to concerns at all, is to file a pre-award protest. The agency then has to directly respond, through the bid protest, to those concerns. Such a protest could also spur a corrective action by the agency in which they correct the terms in the solicitation or finally respond in some fashion to the basis of the communications they previously ignored.
3. To stay contract award or decision.
While this is not a technically a basis to file a pre-award protest, it is an added bonus for contractors who feel there are issues in the solicitation and need more time to prepare, want to continue performing the previous contract for a while longer, or are excluded from the competitive range and hope for another shot at the award.
When a pre-award protest is filed with GAO, the FAR states “a contract may not be awarded unless authorized.” While it is not a guaranteed stay of award, it will at least cause an agency to pause its award decision. That being said, a stay of award decision is the most likely outcome, as unless the agency completes multiple steps outlined in the regulation to overcome the stay, it cannot award the contract until the protest is complete.
Often, contractors may see solicitation terms or communication issues present in a solicitation, but not think it rises to the level of protesting. However, if that same contractor is the incumbent performing a bridge contract, or is a contractor that needs more time to work on the proposal, they may see this potential stay as a good reason to take a shot at a pre-award protest. Of course, if a contractor finds itself excluded from the competitive range, it may hope that the protest of that decision will result in it getting another chance at award, which is only helped by a stay of award decision. Speaking of which…
4. Contractor is excluded from competitive range.
A common way to structure a solicitation is to allow the agency to set a competitive range of offers, thus whittling down the amount of offerors progressively until the final award decision is made. When a contractor doesn’t make that cut, it is called being excluded from the competitive range. A competitive range is typically set to eliminate certain offerors, then have discussions with the remaining offerors. The unlucky offerors who find themselves on the outside looking in sometimes will simply think that they have no way to debate the competitive range decision until after award or that it is not an award decision that can be protested. That is incorrect.
GAO states that protests other than those based on solicitation terms “shall be filed not later than 10 days after the basis of protest is known or should have been known (whichever is earlier).” If there is a required debriefing (which does sometimes occur with competitive ranges), then the protest “shall not be filed before the debriefing date offered to the protester, but shall be filed not later than 10 days after the date on which the debriefing is held.” There is no designation that such a protest must be “after award” or something along those lines. As exclusions from competitive range occur prior to a final award decision, they stand as a great reason to file a “pre-award” protest. The protest of course will feel similar to a post-award decision, discussing evaluations, etc. but it will still be a pre-award protest.
Bonus: Debriefing complexities about pre-award protests.
With all this in mind, it is important to note something that could actually prevent you from protesting a pre-award matter. Our blog on this provides more information, but it is important to keep in mind that if offerors postpone a pre-award debrief until after award decisions are made, then they lose the right to protest based on any information that could have been discovered in the pre-award debriefing. If a contractor finds itself excluded from competitive range, and is offered a debrief, then choosing to postpone that debrief until after award will prevent any possible protest from happening based on viable grounds discovered as part of that delayed debriefing that could have come out in the earlier debriefing.
Though the reasons for protest represent a wide array of situations, they all contain one common thread—they all are filed prior to an award decision. GAO, through its case law and regulations, has carved out a way for contractors to address things prior to any award decision. These pre-award protests can be filed to help rectify the wrong of an exclusion from competitive range, or be used to help clean up a less than stellar solicitation. As with all protests, it is very fact specific as to why and when a contractor should file a protest. If you find yourself facing a confusing solicitation, excluded from the competitive range, or not getting clear communication back from an agency, don’t hesitate to reach out to a federal government contracts attorney to discuss your possible pre-award protest options.
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