Best Recipes for a Bid Protest

Most Government contracting officers are dedicated, hard-working and honest. The same is true of most Government proposal evaluators. As a result, arguments in bid protests that Government personnel were biased against the protestor or in favor of the awardee often don’t go anywhere. Most often, successful protests are those which challenge an agency’s disparate treatment of offerors, lack of meaningful discussions, misleading discussions and other failures to follow procurement laws and the solicitation’s evaluation criteria.

Once in while, we do hear of procurement officials engaging in improper behavior in connection with a solicitation. Most recently, in Gallup Inc. v. United States (Fed. Cl., No. 16-1656C, 4/25/17), the U.S. Special Operations Command (SOCOM) agreed to pay a protester’s attorneys’ fees and bid protest costs after the contracting officer admitted to misconduct. Specifically, the contracting officer admitted to creating a memorandum supporting a small-business set-aside decision months after the small-business acquisition was underway. Note that the case was filed at the U.S. Court of Federal Claims, where the agency is defended by the Department of Justice. In protests at GAO, the procuring agency defends the protest itself. The fact that an independent third party (a DOJ attorney) looks at the protest issues is one reason why protesters sometimes choose court as a forum instead of GAO.

Cases such as Gallup get our attention because they are so rare. Protestors should consider all potential arguments before deciding whether to file a protest, but they should keep in mind that Government officials are presumed to act in good faith. Throwing mud at a potential customer is rarely a good idea unless you are sure it will stick. Otherwise, focus on developing protest arguments that will show that the agency failed to follow regulations and the RFP.