Pre and Post Award Bid Protest

Bid Protests: The Devil Is In The Details

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What details are important in bid protests? Recently, Paradigm won a bid against the Missile Defense Agency’s (MDA) issuance of a task order to Booz Allen Hamilton, Inc. Its successful bid protest provides insight into the level of detail that must be applied when submitting bids for government contracts.  The Government Accountability Office (GAO) valued the task order at over $10 million, so as usual with bid protests, a lot was at stake.lk AZ4DE

Task Order Request

The task order request sought a contractor to provide strategic planning and financial support services for one year with an option to extend the task order for an additional two years. The task order asked for support services for five locations: Huntsville, Alabama; the National Capital Region; Dahlgren, Virginia; Colorado Springs, Colorado; and Albuquerque, New Mexico.  Offerors were required to submit resumes for two key personnel, as well as for any subject matter experts that the offeror proposed using.

The MDA received proposals from two companies: Paradigm (the incumbent) and Booz Allen. Booz Allen submitted its proposal with two resumes, one for the contract program manager (Ms. G) and the other for the task order lead. However, two weeks later, Ms. G informed Booz Allen that she had accepted a position with another firm. Booz Allen did not notify the MDA’s contracting officer that Ms. G, one of its key personnel, had left the firm until after MDA had selected Booz Allen. As part of Booz Allen’s notification, it proposed that a new contracts program manager take Ms. G’s place, Mr. H.

Proposal Reevaluation

Following this turn of events, the MDA reevaluated the proposals.  After reevaluation, MDA again chose  Booz Allen. Paradigm protested the MDA’s final decision to the GAO.  Paradigm complained that Booz Allen’s proposal was technically unacceptable because it did not provide the MDA with two resumes because Ms. G was unable to perform under the task order (and it did not submit Mr. H’s resume at the same time that it submitted its bid). Paradigm argued that Booz Allen’s failure constituted a “material” violation.

According to the GAO’s rules, it only examines the record to determine whether the agency’s judgment was reasonable; it does not determine whether the agency made a “good” business decision. However, a proposal that fails to conform to a “material” solicitation requirement is unacceptable and that offeror cannot be given the award.

Here, the GAO determined that the proposal of the two key personnel was a material requirement. Although MDA considered Booz Allen’s failure as merely a weakness, the GAO stated that it was, in fact, a deficiency. Booz Allen’s revised proposal could not be viewed as satisfying the solicitation’s key personnel requirements. That is, having been informed prior to its reevaluation of proposals that Booz Allen’s proposal no longer satisfied the MDA’s requirements, MDA could not simply accept Booz Allen’s revised proposal; the MDA should have either rejected Booz Allen’s revised proposal or reopened discussion with both companies.

Ultimately, the GAO determined that the MDA either reject Booz Allen’s proposal (and thereby select Paradigm) or reopen discussions with both companies. It also recommended that the MDA reimburse Paradigm for its legal fees and expenses.

As Paradigm proved, even a seemingly fair bid process can contain significant undercurrents of unfairness. Its successful protest is a warning for those submitting bids and a possibility for those protesting them. 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 complete an online form.

About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.


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