#GovConThoughts: Competitive Prejudice in Bid Protests and Post-Protest Explanations
The GAO bid protest decision in IDEMIA National Security Solutions, LLC, B-421418,B-421418.2 (May 1, 2023) is informative for at least two reasons (there are others): (1) even if the agency's evaluation is flawed, protesters must still demonstrate competitive prejudice because of that error; and (2) GAO will allow post-protest explanations to fill in the gaps of the contemporaneous record, but not to recreate a record in the heat of litigation. (The protest was sustained on two grounds; this post focuses on the first.)
Here, the protester was assigned a weakness under the most important evaluation factor because its teaming agreement with its subcontractor was "unclear as to which tasks the subcontractor would be responsible for, and that it was unclear which firm would be responsible for [DELETED]." The SSA agreed with the TET's findings and ultimately concluded that the issue presented risk, and during the tradeoff, highlighted that reason as to why paying a $37M price premium for the awardee's proposal was warranted.
The protester challenged this weakness as factually incorrect and unreasonable. In response, the agency *conceded* that the weakness was wrong, but said the protester was not competitively prejudiced by it. The agency also provided a statement from the SSA. GAO did not bite for two reasons. First, GAO noted that the record showed that the weakness contributed to the agency’s assessment of risk and a lower confidence rating. Second, during the tradeoff, the agency found that the awardee's proposal represented less risk, in part because of the protester's teaming agreement issue, which ultimately warranted paying the price premium.
Notably, with regard to the SSA's post-protest explanations, GAO gave the SSA's post-protest statements "little weight" because the statements went beyond providing "rationale for contemporaneous conclusions and filling gaps in the record." GAO ultimately found that the SSA's statements amounted to a "reevaluation of IDEMIA’s proposal in the heat of litigation."
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Even where a protester has a winning argument (conceded or otherwise), it must still demonstrate competitive prejudice – that is, but for the agency's actions, the protester would have had a substantial chance of receiving the award. As GAO noted, it resolves doubts in the protester's favor, and will "sustain a protest when the protester has shown a reasonable possibility that it was prejudiced by the agency’s actions."
Moreover, while agencies will generally make any number of arguments in defending their actions and award decisions, any post-protest statements they provide during the bid protest must nevertheless be tied to providing supporting rationale for contemporaneous conclusions and filling gaps in the agency's record. Where those statements travel beyond or do not otherwise lend support to the existing record, GAO will generally cast them aside, as they "may not represent the fair and considered judgment of the agency."
