RECENT TRENDS: GAO’s Most Prevalent Grounds for Sustaining Bid Protests
Last December, the U.S. Government Accountability Office ("GAO") submitted its Bid Protest Annual Report to Congress for Fiscal Year 2015. In that report, and in its annual reports since 2013, GAO summarized the most prevalent grounds for sustaining bid protests. [1] It is important for government contractors to understand how to use this information. In doing so, contractors will be in a better position to obtain agency corrective action or to have their bid protest sustained by GAO. [2]
Recurring Grounds for Sustaining Bid Protests
1. Unreasonable cost or price evaluation
Agencies often evaluate a contractor’s proposed cost or price to determine whether the contractor is capable of successfully performing the requirements of the contract. GAO will sustain protests challenging an agency’s failure to show that it conducted an independent assessment of whether a contractor’s cost indicated that the contractor could sufficiently perform the contract. [3]
Tip: Solicitations often use the terms “reasonable” and “realistic” in relation to cost or price. These watchwords are different and have distinct meanings. An agency performs a reasonableness analysis to determine whether a contractor’s cost or price is too high. Conversely, an agency performs a realism analysis to determine whether a contractor’s cost or price is too low. The concern with proposing a cost or price that is deemed too low is that an agency may think there will be a risk of poor contract performance due to a lack of technical understanding. [4]
2. Unreasonable evaluation / failure to follow evaluation criteria
Agencies often evaluate contractors on technical and past performance factors—technical capabilities and previous work performed by the contractor that is sufficiently similar to the solicited work—in an attempt to ensure successful contract performance. However, an agency must only evaluate technical or past performance factors in accordance with the solicitation. GAO will sustain protests challenging an award where a protester can demonstrate that the agency deviated from the stated evaluation methodology. [5]
Tip: A simple way to determine whether the agency failed to evaluate a proposal consistent with the solicitation is to compare Section M requirements with debriefing materials, if any.
In sum, GAO bid protest annual reports can help contractors understand which protest grounds have the best chance of succeeding on the merits. Disappointed bidders should carefully review the Government’s reasons for rejecting their proposal and compare any critiques or ratings with what the solicitation described. Contractors who understand GAO bid protest decisions and demonstrate basic familiarity with prevailing interpretations of the FAR will be in a stronger position to amicably obtain corrective action from the contracting officer without the trouble of filing a bid protest at GAO.
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[1] In fiscal year 2013, Congress enacted law requiring GAO to report a summary of the most prevalent grounds for sustaining bid protests during the preceding year. 31 U.S.C. § 3554(e)(2); Bid Protest Annual Report to Congress for Fiscal Year 2015, Fiscal Year 2014, and Fiscal Year 2013.
[2] When GAO “sustains” a protest, GAO agrees with the protester’s allegations that the contracting officer made an improper award. GAO then makes a recommendation to the agency describing what corrective measures should be taken (e.g., directing the contracting officer to reevaluate the proposals consistent with the decision).
[3] Computer Sciences Corp.; HP Enterprise Servs., LLC; Harris IT Servs. Corp.; Booz Allen Hamilton, Inc., B-408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331 (finding an unreasonable cost realism analysis where the agency failed to independently assess whether the offerors’ proposed labor hours, skill mix, and labor mix were sufficient to successfully perform the requirements of the cost reimbursable sample task order).
[4] FAR 15.404-1(d); see Indtai Inc., B-298432.3, Jan. 17, 2007, 2007 CPD ¶ 13 at 4; DynCorp Int’l LLC, B-407762.3, June 7, 2013, 2013 CPD ¶ 160 at 9.
[5] Al Raha Group for Technical Services, Inc.; Logistics Management International, Inc., B-411015.2; B-411015.3, Apr. 22, 2015, 2015 CPD ¶ 134.
DISCLAIMER: This post is for informational purposes only and may be construed as attorney advertising in some jurisdictions. The information provided above is not intended to be legal advice and should not be construed or relied upon as legal advice. If you need legal advice, please consult an attorney.
