What Constitutes Winning A Bid Protest

Winning a bid protest may or may not feel like a win.

It turns out the Government Accountability Office (“GAO”) knows what constitutes “winning.” This week, the GAO deniedA1C Partners’ request for reimbursement for its costs in filing and pursuing two bid protests that it filed during this past year. The Department of Homeland Security (“DHS”) sought to find a contractor to provide intelligence support services.

Bid Protest #1, Dismissed

Around October 2013, the DHS awarded the contract to Six3 Intelligence Solution over A1C. A1C then filed its first protest against DHS’s solicitation criteria. A1C alleged that the DHS improperly changed the solicitation’s award criteria from the contract that provided the best value to the contract that was the lowest-priced yet still technically acceptable. In addition, A1C alleged that Six3’s bid price was unrealistically low.

In response to A1C’s protest, and before the deadline to submit its report, the DHS stated that it would take corrective action. The DHS stated that, to correct the problem, it would reevaluate the proposals and make a new selection. This meant that A1C’s protest was no longer necessary and the GAO dismissed the protest.

Bid Protest #2, Dismissed

In April of this year, the DHS again selected Six3. A1C quickly filed its second bid protest. According to A1C, the DHS did not make any changes to its selection criteria.

After reviewing A1C’s protest, the DHS again withdrew its solicitation. This time the DHS stated that it needed to reevaluate whether it still needed the contract services. It informed the GAO that it would reevaluate its needs; if it determined that it still needed the contract, it would then reevaluate the proposals a second time and make a new award decision. If it no longer needed the contract services, the DHS would cancel the solicitation. The GAO then dismissed A1C’s second protest.

Request for Costs, Denied

A1C then filed a request to the GAO for reimbursement of its costs in filing and pursuing the protests. Under GAO precedent, the GAO will recommend that the agency reimburse the protestor its protest costs where the protestor convinces the agency to take corrective action, the protestor’s case was “clearly meritorious” (i.e. the GAO can determine that the protestor would have won), and the agency took so long that the protestor was forced to incur costs in order to obtain the corrective action.

Since A1C twice prompted the DHS to reevaluate its solicitation, it’s argument would seem viable.  The GAO disagreed, however, finding that A1C did not provide enough evidence that it would have won its case.  According to GAO rules, whether the agency believes that the protestor has a valid claim does not control; the GAO can only look at the evidence presented before it. And, here, the GAO determined that A1C had not presented enough evidence to prove that its claims were “clearly meritorious.” However, even if the GAO thought A1C’s claim would have won, the GAO did not think that the DHS’s delay was long enough to justify recommending costs. Accordingly, the GAO denied A1C’s request for costs.

Winning

As A1C’s case illustrated, winning a bid protest can be tricky. It’s over for A1C, but may not be for your business.  If your business is involved in government contracting and procurement, the experienced attorneys at Whitcomb Law, P.C.can help you protect your rights and demonstrate what “winning” really is to the GAO.

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