Does having a substantial chance of winning a contract make a difference in a bid protest? Recently, Raytheon Company and its attorneys filed a successful bid protest convincing the U.S. Government Accountability Office (GAO) that the U.S. Customs and Border Protection, a Department of Homeland Security agency, missed the mark when it awarded EFW, Inc. a $145 million border security contract.
Origins of the Protest
The contract at issued called for a sensor-system that provides long range surveillance along the nation’s borders to enable detection, tracking, and classification of items of interest to the agency. Initial performance was to be over a 1-year period, with the option to renew for up to seven 1-year option periods. The Agency chose EFW, a Texas-based subsidiary of Elbit Systems, over six other competitive bidders, including Massachusetts-based Raytheon’s lower bid. The value of Raytheon’s lower bid was redacted from the GAO’s report.
The bids were evaluated on a best-value basis that weighed price and five other non-price factors. The non-price factors considered were operational utility, system maturity and deployment capability, technical utility, ease of management, and past performance. When combined, the non-price factors were significantly more important than price.
In sustaining Raytheon’s protest, the GAO determined that the Agency erred in three respects. First, the Agency gave EFW more credit for its camera that improved lower-quality images than the Agency gave Raytheon for its images which were of higher-quality in their original state. The Agency did not compare the two companies’ ultimate image quality. In addition, the Agency did not take into account Raytheon’s image enhancement features.
Second, the Agency gave both EFW and Raytheon credit for reducing the amount of on-screen clutter, even though the record clearly stated that Raytheon’s product could “de-clutter” the screen while the record gave no clear support for EFW’s claim.
Finally, the Agency credited EFW with the successful past performance of EFW’s parent companies, ESA and Elbit Systems, Ltd. The GAO found this was an error because the record provided no evidence that the parent companies would provide any meaningful involvement in performing the government contract, be it workforce, management, facilities, or other resources.
Errors Alone Not Sufficient
The three errors noted above were helpful to Raytheon’s claim. However, even after finding that a government agency erred, the GAO will not sustain the protest unless it determines that the protester has a substantial chance of winning the award. In sustaining Raytheon’s protest, the GAO found that Raytheon did have a substantial chance of winning the award, since the GAO could not determine whether the Agency would still find EFW’s product superior after accounting for the Agency’s scoring errors, especially considering Raytheon’s lower price.
The GAO recommended that the Agency reevaluate the bid proposals and cancel the original EFW contract if another bidder ultimately wins the second bid. Reimbursement to Raytheon for its attorneys fees and costs was also recommended.
Practical Impact of the GAO Decision
As Raytheon showed, even a bid process that seems reasonable on its face may contain underlying currents of unfairness. If your business is involved in government contracting and procurement, the attorneys at Whitcomb, Selinsky Law, P.C. can help you determine whether the bid process was handled fairly and can advise and guide you in protecting your rights. Please call (303) 534-1958 or contact us here.