Imagine yourself in the final days before a major proposal is due. You’ve been scouring the Solicitation for weeks to wring every ounce of detail about the government’s needs. The only hang up is a single technical element that appears to conflict with the Solicitation’s other requirements. The agency has been cagey about responding to questions on the term, and you think you know what the government wants. You go with your gut and submit the proposal without pushing the government on its requirements.
Months later, you open your email to find disaster. The bid has been rejected as technically unacceptable. The requirement you thought you understood was something else entirely. You explain the situation to your government contracts attorney, but they advise there are few viable options now because the issues involve the terms of the solicitation and the deadline for protest has long since passed.
While this may not be the next Steven King plot, this horror story has unfolded for countless federal contractors. Worse still, the agony could have been avoided with a pre-award protest.
GAO’s bid protest regulations allow potential competitors to protest what GAO calls “improprieties” in a solicitation. While GAO’s bid protest regulations don’t provide a lot of detail about what constitutes a solicitation impropriety, a number of common challenges appear in GAO’s bid protest decisions.
For example, a protester may allege that specific terms within a solicitation are ambiguous. This occurred in the protest of IDS International Government Services, LLC, where there was an internal conflict between the evaluation criteria and proposed adjectival ratings. While the evaluation criteria looked to past experience, the adjectival ratings looked to future approaches. In essence, the evaluation was looking in opposite directions for the same evaluation factor. GAO agreed the Solicitation was ambiguous and recommended the agency clarify its evaluation process.
Another possible challenge is protesting the set-aside designation of a procurement. This occurred in Academy Medical, LLC, where an SDVOSB protested a multi-region VA solicitation that included no SDVOSB set-aside. Essentially, the protester argued the VA had not followed the rule of two, which would require the VA to set-aside specific regions if it had a reasonable expectation that two or more SDVOSBs would submit competitive offers. GAO agreed. It sustained the protest because it was not clear the VA had conducted adequate research to determine whether it could expect competitive offers from two or more SDVOSBs.
Another possible protest ground is unduly restrictive terms. An example of this is Global SuperTanker Services, LLC, where the Forest Service limited the maximum size of firefighting aircraft to exclude widebody tanker planes like the Boeing 747, which Global SuperTanker operates. GAO agreed that the Forest Service’s requirements were unnecessarily restrictive and recommend the Solicitation be revised.
These cases are merely a snapshot of the various pre-award challenges that protesters may raise about a solicitation. Nevertheless, these choice examples highlight how pre-award protests can have a significant impact on shaping solicitation terms and requirements.
These protests, however, come with a significant catch: timing.
GAO’s bid protest regulations contain strict deadlines for filing a pre-award protest. Specifically, “[p]rotests 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.” Essentially, GAO is saying “speak now or forever hold your peace.”
GAO’s deadline encourages competitors to raise issues early in the procurement process. This achieves greater efficiency and, theoretically anyway, results in a more advantageous competition. The rules seek to discourage a business from identifying ambiguous terms and competing anyway, then challenging the ambiguity only after losing the award. As a result, GAO routinely dismisses protest challenges brought after award that are really challenges to the underlying terms of the Solicitation.
For example, the protester in GVI, Inc. recently had a protest allegation dismissed as an untimely challenge to the Solicitation. Competitors were advised that an annual 3.5 percent escalation rate would be applied to labor categories, but GVI proposed a lower escalation rate, anyway. During evaluation, the agency upwardly revised GVI’s price to include a 3.5 percent annual labor escalation. GVI protested the evaluation, but GAO rejected the challenge as untimely because the solicitation instructed competitors that a 3.5 percent escalation would be uniformly applied. GAO said that GVI was technically challenging that term.
The lesson is that once you begin to play by the rules as set out, those are the rules regardless of whether or not they were ambiguous. (Kind of like the NFL catch rule.)
This is such a common misstep that the power of pre-award protests is often lost. People think that you can never challenge a solicitation term. But the reality is almost the exact opposite. You can challenge practically any term that you think is ambiguous or anti-competitive so long as you do it early enough. Thus, when it comes to pre-award protest, do not dawdle. If there are ambiguous or unduly restrictive terms in a solicitation, those need to be challenged prior to the deadline for proposal submission. Otherwise, the opportunity to challenge the term is lost, and it may cost an award.
Are pre-award protests an answer to every procurement problem? No. There’s never any guarantee in GAO protest litigation. Instead, pre-award protests are an available option for contractors to ensure they are playing on a relatively equal competitive field. In the right circumstances, a timely pre-award protest may save an offer from rejection or win an award.
Returning to the opening example, a challenge to the ambiguous terms may have resulted in a revision to the solicitation with greater clarity about the requirements. As the old adage goes, “hindsight is 20/20.” Unfortunately, federal contracts rarely provide significant time for reflection.
If you have a question about pre-award protests, feel free to contact us.