6 Successful Pre-Award Protests Challenging Solicitation Terms and Key Takeaways
Note: This article originally appeared in G2XchangeHealth and G2XchangeFedCiv.
It’s no secret that doing business with the Federal Government involves a complex system of law and regulation. Indeed, many successful Government contractors will happily explain that part of their success stems from quickly learning how to use all of the tools in the proverbial procurement toolbox. Interestingly, one tool that contractors appear to be using more often is the pre-award protest.[1]
For the uninitiated, the pre-award protest is generally described as a challenge to the terms of a solicitation or the ground rules of a procurement. Given that a successful challenge may result in the agency modifying solicitation terms that a protester argued were ambiguous or unduly restrictive, the pre-award protest is often viewed as a powerful tool.
As with any powerful instrument, there are limitations. In that respect, the cardinal rule is that a pre-award challenge to apparent solicitation defects must be lodged prior to the proposal deadline.[2] This is true for protests at the agency level, the U.S. Government Accountability Office (“GAO”), and the U.S. Court of Federal Claims.[3] Where a contractor fails to meet that timeliness deadline, their protest will likely result in a swift dismissal.
Below is a quick take on two common pre-award protest issues, as reflected in sustained GAO bid protest decisions.[4] So, the next time a solicitation hits your desk (or inbox), remember that you’ve got a powerful tool at your disposal should you determine that it includes ambiguous or unduly restrictive terms.
Ambiguous Terms
IDS International Government Services, LLC, B-419003; B-419003.2 (November 18, 2020) (sustaining a protest where the solicitation’s experience factor was ambiguous because of a conflict between the evaluation criteria and the adjectival ratings).
ASRC Federal Data Network Technologies, LLC; Ekagra Partners, LLC, B-418085.4; B-418085.5; B-418085.7 (May 5, 2020) (sustaining protests where the solicitation’s requirement for fixed-price services above the current operations level was insufficiently detailed because it failed to adequately detail the scope and boundaries of such services).
Global Technical Systems, B-411230.2 (September 9, 2015) (sustaining a protest where the solicitation’s requirement for engineering services was ambiguous and vague where it failed to provide sufficient information to allow offerors to intelligently prepare their proposals and compete on a common basis).
Unduly Restrictive Terms
Phoenix Environmental Design, Inc., B-413373 (October 14, 2016) (sustaining a protest where the justification the agency put forth for to restrict terms on a brand name only basis was not supported by the record).
AES UXO, LLC, B-419150 (December 7, 2020) (sustaining a protest where the solicitation’s relevant experience and past performance evaluation criteria required such experience and past performance to have been gained by firms while performing only as prime contractors or as a joint venture, and not while performing as subcontractors).
Ekagra Partners, LLC, B-408685.18 (February 15, 2019) (sustaining a protest where a solicitation term prohibits a mentor-protégé joint venture from submitting a proposal as part of a contractor teaming arrangement that includes additional subcontractors where the agency does not provide a reasonable basis for its inclusion).
Key Takeaways
The pre-award bid protest is a powerful tool for Government contractors. As shown above, each protester was able to successfully challenge the terms of a solicitation as ambiguous or unduly restrictive. For patent ambiguities, look for ambiguous or vague terms that could prevent your team from competing intelligently and on a relatively equal basis (i.e., terms that are susceptible to two or more reasonable interpretations). For unduly restrictive terms, look for solicitation provisions that restrict your ability to compete (i.e., brand name requirements or other terms that are not reasonably necessary to meet the agency’s needs).
Of course, if you believe the solicitation conflicts with statute or regulation, then that would also be another fertile bid protest ground, among others. Yet as powerful as this tool may be, contractors must remember that challenges to patent defects are only available so long as the protest is timely filed. As the court in Blue & Gold explained, “[v]endors cannot sit on their rights to challenge what they believe is an unfair solicitation, roll the dice and see if they receive award [sic] and then, if unsuccessful, claim the solicitation was infirm.”[5]
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[1] See GAO Bid Protest Annual Report to Congress for Fiscal Year 2020, GAO-21-281SP, available at https://www.gao.gov/products/gao-21-281sp (last visited March 22, 2021). Notably, it appears that the FY 2020 report was the first time a pre-award ground appeared on GAO’s list of most prevalent grounds for sustaining bid protests.
[2] There are nuances to solicitation defects (e.g., latent ambiguities), but those are outside the scope of this article.
[3] FAR 33.103(e) (agency-level bid protests); 4 C.F.R. § 21.2(a)(1) (GAO bid protests); Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007) (COFC bid protests).
[4] The bid protest grounds discussed in this article are by no means exhaustive.
[5] Blue & Gold Fleet, 492 F.3d at 1314 (quoting Argencord Mach. & Equip., Inc. v. United States, 68 Fed. Cl. 167, 175 n.14 (2005)).
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