As we saw in the first article in this series, the odds of winning some relief by filing a protest with the GAO are excellent, typically around 40% for the last five years. The next question most clients ask is: “Do I have a good case to win at the GAO?” The answer to that question is highly dependent on the specific facts in your situation, but it turns out there are relatively few legal issues that most often win protests. One common element among all winning protests is that the allegations raise objective or procedural errors in the evaluation and award, and not just subjective disagreement with the decision. To determine what legal bases win the most, I reviewed all reported GAO cases that were decided in favor of the protestor from January 2005 to June 2011. I chose that period to get a large enough sample size for meaningful results, and to also be recent enough to shed light on what is successful now. I analyzed the cases and divided them into logical topic areas that include virtually all winning protests. The table below shows the topic areas, and the percentage of each topic area compared to all winning protests for the period:
|Flawed Cost/Price Evaluation||Flawed Past
|Responsiveness||Organizational Conflict of Interest|
- Flawed Technical Evaluations: This is the category that is most often raised in winning protests. The GAO reviews whether the agency’s technical evaluation was reasonable and consistent with the terms of the solicitation and the law. The evaluation must be based on standards that are applied equally to all offerors. Examples of winning arguments in this category include the agency improperly waiving a requirement for one competitor; not following the stated evaluation criteria or approach; not properly documenting the analysis so it’s impossible to determine how the evaluation was performed; using unstated criteria for the evaluation; assigning improper weight to evaluation factors, and conducting flawed discussions that give an advantage to one competitor over another.
- Flawed Cost/Price Evaluations: For cost-reimbursement contracts the GAO reviews whether an agency’s cost realism analysis is reasonably based and not arbitrary. That is a tough standard to beat, and the numbers above reflect a smaller percentage of successful protests. Examples of allegations included within this area include whether the cost realism analysis was conducted per the solicitation evaluation criteria and procedures; whether there are any inaccurate or arbitrary assumptions; whether there are material errors such as arithmetic errors; where elements of cost are not included; and where each offerors most probable cost is not evaluated. For fixed price contracts, the GAO reviews if an offeror’s price is fair and reasonable and the pricing is consistent with the solicitation. Often, price reasonableness is established just from the other bids, so these allegations are hard to win. Examples of winning allegations include prices that are so low they reflect a lack of understanding of the requirements; prices that create a risk of unsuccessful performance; and a failure to document that the price is reasonable.
- Flawed Past Performance Evaluations: The GAO reviews to determine if the past performance evaluation was conducted fairly, reasonably, and in accordance with the solicitation’s evaluation scheme, and whether it is based on relevant information. In other words, the agency is given a lot of discretion and there are relatively few winning protests on this ground. Examples of winning allegations include showing an agency’s evaluation was unreasonable; the evaluation was not performed according to the solicitation terms such as being outside the relevancy period or size; that the agency did not properly consider information that was close at hand; or that the evaluation was not properly documented.
- Small Business/Competition: The GAO does not review many allegations related to small business—those are normally handled by the Small Business Administration. But there are a few allegations the GAO will consider, such as whether a small business offer was found non-‐ responsible by the agency and the matter was not properly forwarded to the SBA for a determination; or cases where the matter was forwarded to the SBA but the agency provided inaccurate, incomplete or misleading information to the SBA. These are highly complex matters you should discuss with your attorney. The requirement for procurements to be made with full and open competition is often raised in the context of small businesses. The GAO closely scrutinizes sole source procurements. Examples of allegations that fall into this category include insufficient notice; a lack of advanced planning; and the adequacy of the Justification and Approval (J&A).
- Responsiveness: These are matters involving procedural issues, such as the timeliness of submission, responding to all required elements of the solicitation, and mistakes in the bid. In general, the rules on most of these matters are well understood, and if you find the agency committed an error in this area, a protest is often a winner. The small numbers show this does not happen often, but when an agency objectively makes a procedural error the chances or winning a protest are relatively high. Examples include improperly accepting a late proposal; improperly refusing to accept a timely proposal; improperly taking exception to required terms; or improper bid correction.
- Organizational Conflict of Interest (OCI): OCI is an area of increasing concern in the government contracting arena. For example, several major government contractors have recently divested large business units that could create an OCI with other company business. Although this is currently a very hot topic, the percentage of winning OCI protests is quite low. An OCI occurs where a contractor is unable, or potentially unable, to render impartial assistance or advice to the government, or has an unfair competitive advantage. The GAO will evaluate whether the agency’s OCI analysis and decision is unreasonable or not adequately documented. OCIs can arise in three different categories: unequal access to information; biased ground rules; and impaired objectivity. The area is quite complex, and if you believe you or your competitor have an OCI you should consult with a government contracts attorney about it.
These numbers give a feel for how often, and in what topic areas, agencies make mistakes that can be challenged and changed. Whether your case will win, and how good it really is, depends upon the specific facts. Your attorney will work with you to objectively analyze the facts in your particular situation to determine if the agency improperly evaluated your proposal and if so, what they did wrong.
If you have questions about bid protests, or are considering a bid protest on a contract that was just awarded to another company, contact the professionals at Williamson Law Group for a confidential and candid assessment of your case at 301 788‐8198, or firstname.lastname@example.org.