On November 8, the Government Accountability Office (GAO) denied an unsuccessful bidder’s protest that asserted the Veteran Administration’s (VA) evaluation of Texas Waste Company’s past performance was unreasonable and reflected the Contracting Officer’s (CO) bias.

The GAO decision provides an in-depth look at the high evidentiary bar associated with proving governmental bias in bid protests and the need to have definitive evidence before making such a claim.

The Procurement at Issue

On October 5, 2022, the VA issued a solicitation under the commercial item procedures of Federal Acquisition Regulation (FAR) part 12 and the simplified acquisition procedures of FAR part 13 for “regulated waste removal and disposal services for the South Texas Veterans Health Care System.” The solicitation provided that the agency would evaluate offerors using the procedures outlined in FAR section 13.106-2(b)(4)(ii). Specifically, “[t]he lowest price[d] offer will be evaluated and if it is in the highest category of past performance, no other review will be completed. If it is not in the highest category of past performance, we will evaluate the next lowest [priced] offer in the highest past performance category.”

Offerors were instructed to “[p]rovide references for up to five contracts within the last there years of similar size and scope” to evidence successful past performance. Past performance was to be “evaluated using [the contractor performance reporting system (CPARS)], communicating with the provided references, and or by any other means determined by the government.”

After an initial award, protest, and reevaluation, the VA found that Texas Waste, a service-disabled veteran-owned small business, had submitted the lowest-priced quotation. However, when reviewing Texas Waste’s past performance, the agency found it had not provided a list of contract references as the solicitation required. Rather, Texas Waste submitted five copies of CPARS reports for three contracts performed by a Texas Waste affiliate, Gruene. After reviewing the five CPARS reports, the agency found only one to be relevant—the work performed on the incumbent contract—where Gruene received a satisfactory rating. The agency found the other four CPARS reports reflected a range of ratings from satisfactory to exceptional. Ultimately, the SSA assigned Texas Waste a satisfactory rating. The agency then awarded the contract to the second lowest-priced quotation, submitted by CLC Services, which received an “exceptional” past performance rating.

Challenging a Procurement Claiming Bias

Texas Waste subsequently filed a protest claiming the CO unreasonably evaluated its past performance due to its personal bias against the owner of Texas Waste arising from prior disagreements around the performance of the incumbent contract. While performing on the incumbent contract, Texas Waste escalated a complaint about the CO’s handling of a request for equitable adjustment, and then he was removed from the contract.

The evidentiary threshold to proving CO bias is extremely high. As a general matter, GAO presumes government officials act in good faith. A protest claiming bias must prove the CO’s actions were motivated by bias or bad faith using convincing proof ( INTELiTEAMS, Inc., B-418123.4, Dec. 9, 2020, 2020 CPD ¶ 397 at 5.) That standard requires that the protestor 1) provide credible evidence establishing bias against the protester or in favor of the awardee and 2) establish that the bias translated into action that improperly disadvantaged the protester.

Texas Waste’s evidence did not meet the high bar of establishing bad faith. First, the protester called the bias “a case where an ousted contracting officer is seeking petty vengeance on the contractor that caused him to be removed from his position and who repeatedly went over his head to correct the contracting officer’s mistakes.” However, the contention was wholly unsupported by credible evidence. In addition, the protester submitted an email from another agency official to the CO, which stated, “[owner of Texas Waste] keeps telling me “if we win the contract these are the changes” and I’m [sic] like ok . . . LOL.” Protester alleged this statement provided a credible basis for establishing bias, however, the GAO disagreed.

Interestingly, Texas Waste also argued that the satisfactory CPARS rating assigned to Gruene’s performance on the incumbent contract was due to CO bias. However, GAO held that challenging the content of a CPARS rating is not a protestable issue. Instead, it amounts to a matter of contract administration, which must be resolved pursuant to the disputes clause of the contract.

Lessons

Establishing an evaluation that was unreasonable due to CO bias is a difficult task. A long line of GAO precedence supports that absent “convincing proof” protests centered on allegations of CO bias are likely to fall short. Additionally, obtaining the necessary evidence can be almost impossible given GAO’s rigid timeliness requirements for filing. Before claiming bias, contractors should carefully consider whether they have adequate evidence and whether flaws in the evaluation can be explained without alleging bias.

Further, contractors should consider alternative venues for protesting if there are credible allegations of contractor bias. Specifically, in limited circumstances, the Court of Federal Claims allows for discovery to supplement the record in a bid protest.

Lastly, the decision serves as a helpful reminder that under GAO regulations, the forum cannot be used to challenge CPARS determinations. As noted above, contract administration issues are matters that must be handled under the disputes clause of the contract.

Overall, the Texas Waste decision offers a useful illustration of the high standard that must be met to prove government bias. Contractors should keep that in mind when considering their protest strategy.