Pre-award or post-award bid protests on government contracts are most often filed with the General Accountability Office (GAO).  GAO Bid Protest Procedures are at 4 CFR Part 21.  Also see Federal Acquisition Regulation (FAR) 33.104.   A bid protest concerning the terms of a solicitation must be filed prior to the date that proposals are due (bid opening date) in order to be timely.  Pre-award bid protests may also be filed challenging an adverse agency action, such as an offeror’s exclusion from the competitive range and further participation in an ongoing procurement.  Pre-award bid protests filed with GAO typically stop award of a contract until the protest is decided, absent a high level determination that it is urgent and compelling that a predecision award be made.

Post-award bid protests challenge the agency’s award decision or procedures utilized in making the contract award and are available to disappointed bidders that believe an agency has not acted in accordance with statute or regulation in conducting the procurement.  The GAO gives the benefit of the doubt to agency action, frequently deferring to the agency’s exercise of discretion.  However, contracting activities must conduct proposal evaluations as described in the request for proposals, and in accordance with statute and regulation. GAO generally will not substitute its judgment for the judgment of the agency contracting official, but if a violation of statute or regulation is found, or if proposals are not evaluated as stated in the request for proposals (RFP),  the GAO will recommend corrective action.   GAO recommendations to agencies for successful post-award bid protests may include reopening the procurement, terminating a contract awarded improperly, and payment of the successful protester’s attorneys fees and other costs of pursuing the protest.

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The construction contract award was made to DQSI, Corporation, which was the 8(a) entity approved by SBA. However, the proposal had been submitted by DQSI, LLC. It is undisputed that the award was made to a legal entity other than the entity that submitted the proposal.

The protester alleges that DQSI, Corporation no longer exists because it converted to a LLC in 2009. Further, the protester alleged that DQSI, Corporation did not receive advance SBA approval of the change in business structure or ownership. SBA confirmed that DQSI, Corporation was the 8(a) eligible participant.

The protest against the 8(a) award to DQSI, LLC was sustained by GAO, and the Army instructed to terminate the contract for convenience if DQSI, LLC is not eligible for the 8(a) award.

GAO sustained the bid protest of AMEC Earth & Environmental, Inc., in B-401961, B-401961.2 (December 22, 2009), finding the agency’s discussions were flawed. If discussions are conducted, they must be meaningful, equitable, and not misleading. AT&T Corp., B-299542.3, Nov. 16, 2007, 2008 CPD 6.

In the AMEC case, the agency’s questions were misleading, and did not address its’ true concerns. The agency viewed AMEC’s proposed use of a certain project management software as a weakness, but the discussion questions did not communicate this concern. Instead, the agency questions focused on specific features of the project software. The agency reported to GAO that the agency did not want to direct AMEC toward a particular technical approach. GAO, however, concluded that the agency had conducted broad discussions with all firms, identifying weaknesses, and it was incumbent on the agency to do so with all offerors equally. The agency should have apprised AMEC of a perceived weakness in AMEC’s proposal resulting from AMEC’s choice of software product. The agency’s discussions were materially misleading, depriving AMEC of the opportunity to address the concern. GAO sustained the bid protest.

Contact government contracts attorney Karen S. Hindson for your contract law questions.

In the DGR decision, GAO sustained the bid protest of a firm bidding on an Air Force housing maintenance RFP. The GAO finds the law governing Historically Underutilized Business Zone (HUBZone) priority to be unambiguous and requiring a HUBZone set aside if the statutory conditions are met (at least two HUBZone concerns and award will be at a fair market price). Nonetheless, the Air Force set the procurement aside for the Small Business Administration (SBA) section 8(a) program with the concurrence and support of the SBA and Department of Justice. This conflict throws the bid protest system into disarray, as the GAO sustains a bid protest and the Executive Branch agency refuses to follow the GAO decision. The GAO acknowledges this dilemma in its decision, noting that this issue will only be resolved by a change in the law or by a decision by the United States Court of Appeals for the Federal Circuit.

The Justice Department currently has an appeal pending in the case of Mission Critical Solutions v. United States, in which the Federal Claims Court agreed with GAO’s interpretation of the law. Watch for a decision by the Federal Circuit. Contact government contracts attorney Karen S. Hindson for more information.