You receive notice that you were not the successful offeror and the PM, Capture Manager or CEO is certain that the company did not get a fair shake from the Agency and they are thinking about protesting. You suspect their stance is more passion than business. Is there advice you provide to help the decision making before engaging an attorney or submitting a protest?
First of all, there are three levels of protest:
2. GAO Level: The protest is submitted to GAO and the Agency must respond to the GAO within 30 days. The outcomes of these protests are usually made public by the GAO and these protests usually cost more.
3. Court of Federal Claims (COFC): Generally, these are the most complex and expensive protests. The Court of Federal Claims can also be used if you have missed a deadline for lower level protest.
For this discussion, we will assume that the size and complexity of the bid does not warrant a COFC protest or, if it does, your advice is to seek counsel who is skilled in bid protests.
When an award protest is not a good idea:
Flawed RFP – The key here is that proposals have already been submitted and either award was made or you were judged out of the competitive range. Quite often information in the debrief clarifies an ambiguity in the RFP. Based on this new information, management may want to protest the RFP, unfortunately, a protest regarding the RFP must be done prior to the proposal submission due date.
You finished lower than second – Agencies and the GAO only accept protests from an “interested party”. If you finished third or lower, then you would not potentially be in line for an award if the protest is sustained; therefore, if you finished third or lower in a single award you are not an interested party.
The debrief was over ten days ago – Protests must be filed no later than 10 days after the protester knew or should have known the basis of protest (whichever is earlier). This is usually based on when the debrief was offered. Two important distinctions: 1) Ten days is calendar days; it is no coincidence that notices to unsuccessful offerors go out late on Fridays and right before holidays, 2) If you cannot do the debrief on the date offered and the parties settle on a date three days after the first date offered, the ten days is still based on the first date offered.
An Agency level protest of a complex issue – In an Agency level protest the KO or someone in their supervisory chain usually renders the decision. If the issue is a simple black and white mistake, they may acknowledge the mistake and take corrective action. If the issue is more complex, there is a greater concern that the decision making will be biased in favor of the Agency.
You feel your evaluation was too low – This is tricky because there are many exceptions; however, the GAO has stated on many occasions that the evaluation of proposals is largely at the agency’s discretion. The GAO has also stated they do not reevaluate proposals. They are more likely to sustain a proposal if there is a flawed technical evaluation or failure to adhere to the evaluation criteria.
If you think the agency evaluated you as “GOOD” for past performance when you thought it should be rated “OUTSTANDING” there is a low chance of sustainment. If you were marked down for failing to provide a list of subcontractors for evaluation when that wasn’t an RFP requirement or a basis of evaluation in the RFP, then the GAO may find that to be a flawed evaluation and sustain the protest.
While there are many reasons to protest, there are also times when discretion is the better part of valor. If you are an interested party and you believe the Agency did not follow the RFP then a protest may be in order. However, as described above, there are some clear instances when a protest may not be a good use of your resources.
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